Episode 29 - Ken Macdonald KC

In this episode, we meet one of the UK’s most distinguished King’s Counsel – and someone who is very familiar with Hong Kong – Ken Macdonald. He is a former Director of Public Prosecutions, a life peer in the House of Lords and a founder member of Matrix Chambers in London. He speaks with our Senior Partner Colin Cohen. Stay tuned. 

Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter     

Established in 1985, Boase Cohen & Collins is an independent law firm equipped with Hong Kong knowledge and global reach. Please visit our website. 

Transcript

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[00:00:32] Colin: Welcome to Law & More. Today I'm delighted to be chatting with one of England's most distinguished barristers, someone who is very familiar with Hong Kong, Ken McDonald.

[00:00:43] Colin: Or to give him his full title. Lord MacDonald of River Glaven, King's Council. He's a founder member of Matrix Chambers in London, former director of Public Prosecutions, previously Warden of Waden College, Oxford, and a life peer in the House of Lords. He's described by Chambers Legal Directory as an iron fist in a velvet glove.

[00:01:11] Colin: Ken, welcome to Law & More. Like I asked all my guests what's been keeping you busy recently.

[00:01:17] Ken: Well, thank you very much for asking me, Collin, it's a pleasure to be here and to be speaking to an audience which may be at least largely based in Hong Kong. I've been busy with legal work, mainly advisory. I do a lot of advisory work around criminal risk, around money laundering, around regulation and so on.

[00:01:34] Ken: But I've also been quite busy in the House of Lords where we've got a lot of very important legislation at the moment, including the illegal migration bill, which is quite controversial and various bills to do with financial and economic crime. So it's a mixture of stuff really.

[00:01:48] Colin: Well, that's good to hear. Before I discuss your stellar career, perhaps we could go back a bit in time and tell us a little bit about your upbringing education, shed some light on your early days.

[00:02:02] Ken: So I spent my early years in the north of England on the edge of the Lake District in northwest England in a little town called Alveston. My dad was a scientist, he was a microbiologist. And he was working at that time for Glaxo, the British Pharmaceutical company. 

[00:02:17] Ken: I had three sisters. We moved to the south when I was eight or nine, down to Southern England. So I spent most of my formative years in a little town in southern England called Salisbury. Well known for having a beautiful Cathedral and well known for the dreadful events of three or four years ago when the Russian State organized a murder or tried to murder a former Russian agent who was living in Salisbury, but accidentally, if you will, killed an innocent woman who happened to be a bystander by poisoning her. 

[00:02:46] Ken: But it also has a very beautiful Cathedral. And it has a very good grammar school, which I attended. So I attended that grammar school. I did my A levels there, and then I went off to Oxford university to study politics, philosophy, and economics, not law.

[00:03:00] Colin: So what got you into the law? What happened?

[00:03:02] Ken: Well, I think I'd always intended to become a barrister. I'd wanted to do that for years and years. I just didn't particularly want to study law at University and in those days, still the case of course, that people who don't study law at University, come to the bar. But in those days there were quite a lot of people who didn't study law at University who came to the bar.

[00:03:19] Ken: I'd wanted to be a barrister since I had been quite young. I mean, partly it was a romantic notion of trials and juries and verdicts. I always enjoyed arguing. I used to debate a lot at school. And another influence, which a lot of people have mentioned to me on my podcast when I asked them why they became lawyers.

[00:03:34] Ken: Another influence was a program that used to be on ITV. A television channel in the UK called Crown Court. 

[00:03:41] Colin: Oh yes, I remember that. 

[00:03:42] Ken: This was on at lunchtimes. So you could watch it during the holidays or if you were off sick from school. It was a half hour program. And it was basically a trial.

[00:03:50] Ken: But the thing about it was that the jury, were recruited from members of the public. And at the end of the program, the jury would be a real jury who would decide whether the defendant was guilty or not guilty. So you never quite knew what was gonna happen. And many of Britain's people who went on to become Britain's finest writers cut their teeth on that show.

[00:04:07] Ken: So it was a combination of things. But I went to university thinking that it would be more interesting to study politics, philosophy, and economics than law. I may have been right about that, I don't know. But when I left university, I did the Barexams and started practice. I was called to the Barin 1978.

[00:04:21] Colin: And obviously you did your pupillage. Tell us about the early part of your career and what work you were doing.

[00:04:26] Ken: Well, I was Helena Kennedy's first pupil, so Helena, the very well known peer now, but also a criminal barrister for many years, I was her first pupil. And I was in a small set of set chambers in 1978. This had just been formed. It was called Garden Court. We did a lot of work for local law centers.

[00:04:42] Ken: We did criminal defense work. We tended to represent tenants rather than landlords, employees rather than employers. And we were rather idealistic and I think rather frowned upon by the rest of the Bar, who used to think that we were a bit radical and maybe a bit progressive. And they used to call us the alternative Bar, but we had the last laugh because Garden Court became very successful.

[00:05:02] Ken: And our way of doing things, having a chambers constitution, electing our head of chambers, paying pupils, our way of doing things, became the way of doing things. And now these are the forms of practice that are followed by everybody. But in those early years it was quite tough. We've had to fight some quite lonely battles at the Bar, in the early years.

[00:05:20] Ken: But things changed dramatically in the eighties and nineties. And Bar is now in England and Wales, at least a very Democratic, Meritocratic and enlightened place.

[00:05:28] Colin: So what type of work you were doing earlier on?

[00:05:31] Ken: Most people in those years did a mixture and that was the approved way to start practice. But I only ever really wanted to do criminal law and a bit of public law. So I really focused on criminal law. Right. From the start. So I started working in my very, very early months in first couple of years in the magistrate's court, in the juvenile court, and then started doing Crown Court trials and really loved that.

[00:05:51] Ken: I loved jury trials, I loved the drama of it, I loved the excitement, the highs and lows, the adrenaline. And so I developed what turned into a very heavy trial practice quite quickly.

[00:06:02] Colin: Enjoyable?

[00:06:03] Ken: I loved it. By the end when I took silk, I was doing a kind of combination of private white collar crime and terrorism, which maybe an odd mixture, but I always felt that if I did nothing but white collar crime, that might become a bit tedious, very well paid, but I felt it might become a bit samey.

[00:06:18] Ken: So I used to do two or three big terrorism cases as well each year. Normally IRA Irish, Republican Army, cases at The Old Bailey. And they brought a lot of drama of their own. So that was my practice in silk. And I mean it's very stressful, a heavyweight, high level advocacy practice.

[00:06:33] Ken: But I very much enjoyed it. And I used to appear also in the Admin Court during some public law cases, and of course in the Court of Appeal.

[00:06:39] Colin: And tell us a little bit about Matrix Chambers with Cherry Booth, Tim Owen and others. Tell us a little bit about that.

[00:06:46] Ken: in 1998 the Human Rights Act was legislated for by the Tony Blair government. This was during its first or second year. And we thought the passage of the Human Rights Act was going to change the law in England and Wales in all sorts of ways, and might create synergies between, for example, a criminal law, some aspects of commercial law, human rights law.

[00:07:08] Ken: There might be synergies here as indeed turned out to be the case. So we thought a group of us that it might be a good idea to set up a new set of chambers that tried to approach, offering legal services and legal practice in a different way in the light of the Human Rights Act. So we thought that a multidisciplinary approach would be a good idea.

[00:07:25] Ken: So criminal law was an important part of it, commercial law was an important part of it, european law was an important part of it. And so was banking, taxation and so on. We felt that all of these things were going to be informed in one way or another by changes, which would be wrought by the Human Rights Act.

[00:07:42] Ken: And we thought there was an opportunity there and it proved to be very successful. We managed to attract some very, very talented people, and particularly to recruit some very, very talented entrants to the bar. And that's continued to the present day.

[00:07:53] Colin: Yes, and I also note that in 2001 you were appointed a recorder. And just for our listeners, that's a part-time judge. Did you ever wanna go to the judiciary? Do you have any desire to become a judge? No.

[00:08:05] Ken: When I was younger, when I was a a barrister and after I'd been practicing for 10 or so, years, yes I did think I might like to be a judge. And the idea was tempting from time to time, but I always seemed to be too busy with my practice. Of course I then went on to become Director of Public Prosecutions, which we might come onto.

[00:08:19] Ken: If I hadn't done that, I might have become a judge, but I think that got the kind of alternative career syndrome outta my system. And it's a different job to being a judge. But after that. When I stopped being DPP, well I'm sure I could have become a judge if I wanted to.

[00:08:32] Ken: And I was tempted. Actually, my wife talked me out of it. She told me I was too impatient to be a good judge and that I'd be a terrible judge. So I took her advice.

[00:08:40] Colin: Well, not as one always does. And I'm interested, very successful at Matrix, doing very, very well. And in 2003 August, the announcement was that Ken McDonald was going to be become the new Director of Public Prosecutions. How did that happen?

[00:08:57] Ken: Well, it was a strange thing in a way. I mean, I was a defense lawyer. Someone said when I became DPP, he's never prosecuted a case in his life and now he's gonna be prosecuting them all. And I think there was quite a lot of surprise amongst my colleagues. I mean, it is pretty mundane.

[00:09:10] Ken: I got a call from a headhunter who said that there was a recruitment, in process for the DPP, and would I like to put my name forward? And I said, obviously not, I'm a defense lawyer, I'm not a prosecutor. And I went home that night. The way a little worm gets into your brain, I began thinking, actually that might be, maybe I shouldn't dismiss it out of hand.

[00:09:27] Ken: And then I spoke the next morning to a very, very old friend of mine, probably my oldest friend, Hugh Tomlinson KC, who's the very celebrated media and defamation lawyer and a member of Matrix Chambers. And I've always trusted Hugh's advice and I mentioned to it to him as a bit of a joke, ha ha, guess what, phone call I got yesterday? And he looked at me and he said, you've got to do it. He said, this is a fantastic opportunity for a criminal lawyer. You must think about it. Seriously. And so I did, and I've always been very interested in criminal justice policy.

[00:09:54] Ken: And that's a big job in criminal justice policy. So I began to think about it and eventually I thought, okay, I applied. I was interviewed and to my surprise, I was appointed. And I was the first defense lawyer to become DPP. It's a non-political appointment, by the way. There's an independent commission that interviews you and makes a recommendation to the Attorney General, which if he doesn't accept means that the entire process has to be rerun. But Peter Goldsmith, Lord Goldsmith, who was the Attorney General, accepted the recommendation and I became DPP in November, 2003.

[00:10:25] Colin: At that time there was a little bit of criticism as to your appointment, and yet David Panic wrote an excellent opinion in the Times, fully supporting your appointment. Do you remember that? And then particularly, so he attacked the media campaign that was gaining, traction against you.

[00:10:41] Ken: Yeah, what happened was that when I was appointed, it was obviously under labor government, although it was a completely non-political appointment. The Tories decided that because I was in the same chambers as Sheri Booth, Tony Blair's wife, I must be a Blair-ite and I must be a Blair crony.

[00:10:57] Ken: So, David Davis, who's a senior Tori Front bencher at that time and who's since become a good friend of mine, put out a press statement describing my appointment as rampant cronyism. And the right-wing newspapers jumped on that, as did the Tories. And I got a good old monstering in the press for two or three weeks on the basis that I was a crony of a man I'd met once at a party in about 19 79 and never since. What it did was it gave me quite a good introduction to Press campaigns and the difficulties you can face in public life when the press decide to take against you for one reason or another.

[00:11:32] Ken: So it wasn't pleasant largely because it was all completely misconceived, but it wasn't the end of the world.

[00:11:38] Colin: You were DPP for five years, Ken, let's look at some of your achievements. Was Counter-terrorism division, organized crime division, special crime division, and fraud prosecution service. These departments were quite critical of the government at the time, and you were, all independent.

[00:11:55] Colin: Is that a fair assessment?

[00:11:56] Ken: Well, I thought that we should have these specialist departments, especially counter-terrorism. I mean, one of the criticisms made when I was appointed DPP was that because I had represented terrorists, michael Howard said this, the leader of the Conservative Party, I wasn't fit to be DPP, which is a very liberal statement.

[00:12:11] Ken: In fact, I was very, very committed, obviously to the prosecution of terrorism. We set up this division, the counter-terrorism division that worked closely with counter-terrorism command at New Scotland Yard, and it was very, very, successful. But you're right, Colin. We did take some positions independent of the government. Because it seemed to me that the prosecutor's voice in these debates was important.

[00:12:30] Ken: So, for example, when the Blair government wanted to introduce a power for the police to detain people for up to 98 days before charging them. The legal period at that time was 12 days. I publicly stated that that was an excessive period of time and we didn't need that long. And indeed that legislation never got through parliament.

[00:12:48] Ken: But I always felt that it was odd in these great public debates when the police were banging on about this, and the government were banging on about that. The home office were banging on about this, that the voice of prosecutors was never heard. And prosecutors were so critical to the system and had such a close understanding of how the system worked, that it seemed to me that their voice was valuable. So I did used to take public positions, yes, sometimes in support of the government and sometimes to their great irritation, in opposition to the government.

[00:13:14] Colin: Your greatest achievement as DPP in your own mind?

[00:13:16] Ken: The CPS had always been seen as a backroom service, so the CPS lawyers really just seen as people who instructed barristers to argue cases in court, and that wasn't a sufficiently attractive career to a attract the brightest and the best. So I tried to move CPS prosecutors into advocacy and we created a rank of crown advocate and we our own people into court arguing cases.

[00:13:39] Ken: And we saw immediately that the quality of people we recruited improved. And I think the enthusiasm of people that we recruited improved. So I think the move of the CPS into advocacy was important. 

[00:13:50] Colin: You retired as DPP in 2008 and you went back to private practice. Could you have continued if you wanted to?

[00:13:57] Ken: What normally happens is that you are offered an extra two years if you want to take it. But I think when you do those jobs, you have probably no more than three things that you want to achieve and you tend to bang on about them endlessly. And not only do you get tired of the sound of your own voice, but I'm sure other people get tired of the sound of your voice too.

[00:14:12] Ken: So I felt five years was long enough. And it was time to get back to my private practice. So I went very happily back to Matrix Chambers.

[00:14:20] Colin: And what is quite interesting is that Kier Stama as he then was now Sir Kier Starmer, he took over from you. He was appointed in your place. 

[00:14:29] Ken: Well, I was happy to play some role in that, that just before the end of my term, I got a call from Kier, who I'd known for many years, who said could he come and talk to me about something? And I said, sure. And he came round to my house and I remember we was sitting in my kitchen and he was asking me about how I'd found it.

[00:14:43] Ken: So I guessed what was in his mind. And he said to me that he was thinking of applying to succeed me. And I strongly encouraged him cause I thought he'd be an excellent DPP as indeed he was.

[00:14:52] Colin: And when you came back into practice at Matrix, any issues with regarding conflicts or difficulties in that cases. Did you find yourself not being able to act because you were involved in certain decisions that were being made. Was that a problem or not really?

[00:15:07] Ken: No, that was an issue. And there were a number of cases that I was asked to become involved in that I couldn't become involved in. I did quite a lot of advice work from those days. I still did trials. I was involved in the Harry Rednap trial, for example, I was representing his co-defendant, a man called Milan Manderich, they were both acquitted. And I did quite a few insider dealing trials. I tended to do cases that were Serious Fraud Office cases rather than cases that would've been prosecuted by the Crown prosecution service because there was less likely to be a conflict if I did SFO cases.

[00:15:36] Ken: So there were a few cases I was offered in the early years of return that I couldn't do, but that quickly resolved itself. So I was back in practice for about. Four years before I went off to Oxford to become a head of a college. Well actually, I continued in practice when I was in Oxford, but I stopped doing trials during that period because it was just too difficult to get away from Oxford for the period that'd be required to do a trial.

[00:15:56] Colin: And of course, the type of work you were doing with getting complex commercial crime. You were in demand all the time in respect of your work. Let's talk a little bit about Hong Kong, because you were a frequent visitor to Hong Kong. You were admitted here in Hong Hong Kong to do certain cases.

[00:16:12] Colin: Tell us about that a little bit.

[00:16:14] Ken: Yeah, I loved coming to Hong Kong. I knew Hong Kong quite well actually because when I was in Oxford, I was the head of Wadham College. And Wadham College has a strong link with Hong Kong because that wonderful, wonderful man, Lee Shau Kee had set up a scholarship program to bring young men and women of modest means from Hong Kong to Wadham to study as undergraduates.

[00:16:35] Ken: And so we had a long line of very brilliant young people from Hong Kong who'd come to Wadham to study at the University of Oxford. I used to visit Hong Kong frequently. And equally, when I was DPP I used to go to China very regularly, two or three times a year. I had those wonderful experiences having banquets in the great Hall of the people and traveling throughout China to Sechuan and Hang Zhou and all over China and indeed to Hong Kong.

[00:17:01] Ken: I knew the DPP of Hong Kong very well. So I knew Hong Kong well. And I love Hong Kong, and you're right, I did some work in Hong Kong both for the defense and indeed for the prosecution. And I recall appearing in the Court of Final Appeal, and the Court of Appeal and indeed the High Court in Hong Kong, and thoroughly enjoyed it.

[00:17:17] Ken: The people I met there, I enjoyed the colleagues that I met, the people I worked and I must say, had a lot of respect. I thought the Court of Final Appeal Judges were extraordinarily impressive.

[00:17:27] Colin: Yes. And obviously I remember when you were here in Hong Kong. That's when I remember I first met you because I remember that Kevin Zervos, who was the then DPP, invited you to come to Hong Kong to conduct a review of the department of Justice and particularly to see how the department was working.

[00:17:47] Colin: Did you enjoy that task?

[00:17:49] Ken: Yeah, I was there for about six weeks actually. And I was set up with an office just off the library in the department. And I was asked really, to conduct a review and to make some recommendations. Which were mainly organizational, around the structure of the office.

[00:18:02] Ken: And I had conversations with many, many of the frontline prosecutors at that time. And obviously the more, more senior people and with the DPP and his deputy. And it was a really interesting period. I mean, I'd done similar work, obviously in London when I joined the CPS. One of the first things I did was to kind of review its processes and its performance.

[00:18:21] Ken: So it was really something that I was quite used to doing, but it was very exciting to be doing it in Hong Kong.

[00:18:28] Colin: And you submitted a series of proposals. Were these followed through as far as you were aware...

[00:18:32] Ken: They were, yeah, I think the vast majority of them were. I mean, I worked collaboratively with people. I wasn't going into in there to do a kind of vicious criticism of the people and the structures. It was to. Look at what they were doing to try and identify what they were doing well and to spread that more widely.

[00:18:47] Ken: And the justice sector at the time was very, very supportive. And I recall meeting him and also Jeffrey Ma, who at that time I think was the senior judge in the High Court. 

[00:18:57] Colin: The Chief Judge, the Chief Judge. 

[00:18:58] Ken: He was a Chief Judge, that's right. I remember going into his room one day and seeing his collection of cricket bats, but he was very helpful to me.

[00:19:04] Ken: And the judiciary in general were extremely helpful to me in identifying issues that they saw with the department and things that they thought could be improved and the things that they thought were going well. So it was a happy, happy time. I didn't meet with any resistance.

[00:19:16] Ken: I also found The Bar to be very helpful. I met with the senior Bar to discuss the issues that they had. And they were also very helpful.

[00:19:23] Colin: At your general thoughts on Hong Kong's legal system at that time.

[00:19:26] Ken: I thought it was, impressive. I'd always been profoundly impressed by the independence of the Hong Kong Judiciary. I'm not familiar with the whole of the Hong Kong judiciary, but the High Court, the Court of Appeal, Court of Final Appeal seemed to me to be operating in a very impressive way.

[00:19:42] Ken: And I also felt that the department that I was looking at had a kind of appropriate sense of its constitutional role in those days. And I thought Kevin was a terrific DPP, hugely committed to his work, but also committed to fairness, and due process. I was deeply impressed by him and by his predecessor and indeed by the other senior people in the department.

[00:20:03] Ken: So I think the hallmark of the system that I perceived in those days was one of independence and attachment to due process. And I think you saw that across the system solicitors, Bar judges, prosecutors. There was a genuine commitment there to due process and also recognition of the importance of Hong Kong's rule of law, reputation to its commercial life.

[00:20:25] Ken: So when I was at Wadham, I used to talk often to quite senior Hong Kong business people who were associated with the college in one way or another, and they too had a clear understanding and appreciation for the importance of Hong Kong's rule of law, reputation to the success of its commercial life.

[00:20:41] Ken: People are are much happier, much more confident doing business in environments where they think if there's a dispute or an issue or a problem, they'll get a fair crack at the whip.

[00:20:50] Colin: I'd like to talk a little bit about your time as Warden of Wadham College. For our listeners, a warden means Head of College. Dunno why Wadham calls it a warden rather like, the Game are Thrones, The Warden. You were there for nine years, just tell everybody what was your role, what did all that involve?

[00:21:06] Ken: Yeah, when I used to tell Americans, when I used to go to the states and tell people I was a Warden, they'd be absolutely horrified. Cause in America, the term warden is attached to the guy who runs a prison. But in Oxford you can be called a Provest, a Warden, a Principle, a Master, a Mistress, whatever.

[00:21:20] Ken: It just happens to be warden at Wadham. So the University of Oxford is made up of 30 or so colleges. And each college is self-governing and each college has a head. And I was the head of Wadham. So the head of the college basically chairs the governing body. The governing body is made up of the faculty.

[00:21:35] Ken: The job of the warden is, in a consensual way, provide direction and leadership to be the face of the college outside the college environment, to represent the college in the university to get to know the students, to meet with the students, to discuss their academic work with them and generally to provide leadership direction and a sense of the identity of the college. So it's a kind of broad role. It's very difficult to define, actually, now you've asked me to define, it's quite difficult to define, but it's a very enjoyable role because generally speaking, the warden of the college, the head of the college is regarded with affection by the fellows and by the students. And there's a great sense of belonging in the college community. People tend to be proud of the college that they're at, particularly the students. The students love to identify with their particular college.

[00:22:22] Ken: And any student at any college in Oxford always believes that their college is the best College. Of course, we had no doubt at Wadham that our college was the best college, but Wadham had quite a liberal, progressive reputation. So a lot of the students were quite interested in politics, they're interested in current affairs and I'm interested in all those things too.

[00:22:39] Ken: So we used to have very engaging and interesting conversations about those sorts of issues. But I used to see every single undergraduate, and there're 350 of them, once a year, one-to-one to talk about their work and their progress. So I got to know them all, it's very enjoyable actually.

[00:22:52] Colin: That's very good. Of course, just for our listeners at home, I was at Cambridge, and I think Cambridge is far better than Oxford, and I was at Downing, and of course Downing was far better than Wadham. But again, we all think like that as well. Did you do any teaching at all?

[00:23:03] Colin: Did you do any seminar, do any tutorials, anything on Law or were you too busy to do that?

[00:23:07] Ken: No, I didn't do faculty teaching, but I used to give some seminars and some lectures. My topic of academic interest is security and rights, so the intersection between security and people's rights. Where do they meet and how do they meet and how do they accommodate one another?

[00:23:22] Ken: So I used to give occasional seminars and lectures on that topic. And I think people who came to them quite enjoyed them. I also used to run a thing called the Wadham Human Rights Forum, where we used to bring prominent public figures to Wadham to speak about issues relating to rights and security.

[00:23:39] Ken: And again, they were always very well attended. And I think they went down well. So yes, I did do a bit of teaching of that sort, but it wasn't as a part of formal degree teaching or postgraduate teaching. Frankly, as a Warden, you're far too busy doing other things.

[00:23:52] Ken: It's a bit like when you're DPP, you're so busy running the CPS and meeting government ministers and all the rest of it, you don't really have much time to consider individual cases and you have to delegate them to other people.

[00:24:03] Colin: It is of interest at we invited you, my Hong Kong University and my firm, Boase Colin and Collins. We have a yearly criminal law lecture and in the middle of the Covid in September you gave a lecture on free speech in Universities. Now, I've been interested in that area and you get a very interesting talk about free speech.

[00:24:22] Colin: And right now there are some tensions in universities in recent Oxford Union, as are people allowed to speak. I've actually become a little bit of a hot potato. Your views on that?

[00:24:33] Ken: Well, along with the historian Timothy Gart Nash, I drafted the University of Oxford free speech statement, which you can find on the Oxford University homepage. Which is a very short document, which basically says free speech is the life blood of a University and University should not be in the business of banning lawful speech.

[00:24:52] Ken: It also makes the point that if you come to university you must expect to encounter views that you find distasteful, unacceptable, even offensive. And that's in the nature of human discourse. Of course, unlawful speech is not allowed, you can't incite racial hatred. You can't incite crime.

[00:25:10] Ken: You can't commit those sorts of offenses. But within the law, Universities have to be able to allow all speech to take place in appropriate conditions in a robustly civil way. I mean, I think students who try to ban people like Professor Kathleen Stock from speaking at university because she believes that biological sex is real and can't be changed are extremely misguided. Lots of people believe that, and it's an entirely appropriate thing to believe. And indeed the English courts have said that it's a protected belief under the Equality Act. So to prevent someone from speaking because they have that belief is potentially unlawful. I think some students, not all students, but some students are too quick to take the view that if they're offended by something, it shouldn't happen and they have some right to be free from offense. They don't. No one has a right not to be offended, and universities are not in that sense, safe places. You don't come to a university to retreat from the world. You come to a university to learn how to engage with the world more critically and more intelligently. To engage with the world, not to retreat from it.

[00:26:13] Ken: That's my general take on this, and when I used to express this at Wadham, it didn't go down well with all students, but I never deviated from it. I think I always said Wadham is a free speech college, and we will protect, encourage and sucker free speech here. And I hope we did.

[00:26:29] Colin: Yeah, and I read very recently that the Vice Chancellor has made it very, very clear that students must have an open mind to consider all spectrums of all arguments. And that freedom of speech is so vital that everybody has their views. 

[00:26:42] Ken: Well, I think Oxford's very fortunate in the last Vice Chancellor from the current one are both strong free speech advocates and I think that's very much to the benefit of the university.

[00:26:53] Colin: Now, I also noticed that your president of the Howard League for Legal Reform. Can you tell us a little bit about Penal Reform. 

[00:26:59] Ken: Well, the Howard League is the oldest legal reform charity in the world, and I was delighted to be asked to become president a couple of years ago. So the Howard League is an NGO, which Commissions research campaigns and proselytizes for Penal Reform.

[00:27:14] Ken: So generally we believe that our penal system is still, to a large extent, stuck in not just the 20th, but the 19th century. That there are far too many people in prison. I mean, our prisons are full of people who are Alcoholics, drug addicts, people with mental disorders, people who shouldn't be in prison, who should be being treated as medical or other sorts of cases in the community.

[00:27:36] Ken: Of course, dangerous people have to be in prison and the public have to be protected. But I think we spend far too little time rehabilitating people who have fallen by the wayside and far too much time locking them up in Dickensian prisons, which do nothing but teach them how to be better criminals when they release. So we take a kind of, I guess you'd say liberal reforming view of Penal Policy, and we try to persuade politicians to get away from this kind of arms race of ever, ever longer prison sentences. Ever, ever severer punishments and less and less money going into retraining and rehabilitation.

[00:28:10] Ken: We think that's exactly the wrong direction.

[00:28:13] Colin: Well, I entirely agree. Now, that takes me into your position in the House of Lords. You are appointed a Working Peer by the Liberal Democrats, but then you moved into the crossbenches, you resigned from Liberal Democrats. Have I got it right? And you're on the

[00:28:28] Ken: Yeah, that's exactly right. 

[00:28:29] Colin: I know you are very busy in the House of Lords, cause I had an excellent dinner with you not too long ago. You looked after me really well, and I'm caught up with lots of people, I saw Lord Thomas and other people. 

[00:28:39] Colin: But tell us a little bit about it, what you're up to in the House of Lords.

[00:28:42] Ken: Well, the House of Lords is a revising chamber. So what we do is we take legislation which has passed through the House of Commons, and we suggest amendments to appro improve it here and there. And sometimes our amendments are accepted by the government. Quite often they are actually, sometimes they're not.

[00:28:56] Ken: In which case we might vote them into the bill and the bill goes back to the House of Commons to see if the House of Commons will accept our amendments, and sometimes they don't, and sometimes they do. And eventually we give way to the House of Commons because the House of Commons is an elected chamber and we're appointed.

[00:29:10] Ken: I think we have a real need for a revising chamber in our country because the House of Commons tends to rush legislation through, and sometimes when it comes to us, it's very ill considered. What I try to do in the Lords, I stay away from legislation, which is concerned with topics I know nothing about, and I focus on criminal justice legislation. Financial regulation, economic crime legislation, security legislation, terrorism legislation, all the things that I know about. I tend to play a role in those debates. I'll sometimes put down amendments. I vote as much as I can.

[00:29:41] Ken: I speak as much as I can. So I think that's what most people in the Lords do. They focus on areas which they know something about. What the House of Lords is supposed to be. A house of experts, people who have some expertise in a particular field. I think that's being rather degraded in recent years, particularly with Prime Ministers. Resignation honors lists where they tend to put a lot of political cronies into the Lords, and I'm afraid that's happened with Mr. Johnson's list, which was published couple of weeks ago. It's a bit ironic that Mr. Johnson who's just been found guilty of lying to the House of Commons and has been refused a Parliamentary pass and has been told that if he hadn't resigned in the face of this finding, he'd have been suspended for 90 days.

[00:30:18] Ken: Nevertheless has been able to put people into the House of Lords as part of a resignation list, and I think we should abolish that system. Indeed, Kier Stamar has said that if he's elected Prime Minister, he will not have a resignation list and will not himself push people like that into the Lords.

[00:30:33] Colin: I entirely agree with that. Now, this takes me into another point. I am a great admirer of your most wonderful podcast Double Jeopardy, which you do far more regular than my podcast on Law & More. And you do it with your friend and colleague and my good friend Tim Owen, King's Council. How did all that come about?

[00:30:52] Ken: Well, actually it was Tim's idea. I was sitting at home one day and he was in Argentina and he rang me from Buenos Aires airport and said, why don't we do a podcast? So I said, yeah, that's a good idea, let's do a podcast. And then as these things go, we talked about it and Hmm'd and ahh'd, and it was another two years or so before we actually got it done.

[00:31:10] Ken: We talked about what it should be and I thought we shouldn't just do a legal podcast. I thought we should try and broaden it out. So I suggested we do a law and politics podcast. So it's about how law and politics intersect, how they rub each other up, sometimes the right way and sometimes the wrong way.

[00:31:26] Ken: And it's called Double Jeopardy for that reason because it's law and politics, it comes out about every fortnight. We've got quite a few listeners in Hong Kong actually. We've got quite a loyal following in Hong Kong and your listeners can find it on Apple Podcast, double Jeopardy. We've got some fantastic people on it.

[00:31:41] Ken: We've got Brenda Hale, who was head of the United Kingdom Supreme Court, as president of the Supreme Court. Dominic Green, former Attorney General. We've got Professor Kathleen Stock. We've got Dianna Rose Casey.

[00:31:51] Colin: And Lord Panic. And I must say, and your last one I'm plugging you cause I really admire it was very interesting. You had a non-lawyer on double jeopardy concerning the Libor and it was a really good one. I really enjoyed that one.

[00:32:05] Ken: I've just listened to it actually. Yeah, andy Verity, who's the BBC economics correspondent, talking about the Libor scandal, which was the prosecution in London of some brokers for allegedly fixing the Libor rates. I won't say anymore about it, but it's, it's a very interesting episode.

[00:32:20] Ken: And indeed our latest one is with Dan Needle, who used to be head of tax at Clifford Chance in London, who set up an organization called Tax Policy Associates, and he's the man who was responsible for Nadim Zaharwees resignation as Chancellor of the Ex Checker in the United Kingdom after he exposed some tax issues with Mr. Sadawi. So it is very varied guess. And yes, since you're allowing me to do this, I'll plug the podcast Colin in and encourage your listeners to find it on Apple Podcasts or Spotify or anywhere else you listen to your podcast.

[00:32:50] Colin: You see, you come on Law & More. And you do have some great advantages. , you've been to Hong Kong many times, you're familiar with our city, you've worked closely with people here. You thoughts on our city's future?

[00:33:02] Ken: Well, I haven't been to Hong Kong for probably four years. I think what I would hope to see in Hong Kong is that I think this is absolutely key that the judiciary maintain a strong sense of independence. And I'm sure they will. And a strong attachment to the rule of law. I think that's going to be critical for Hong Kong.

[00:33:22] Ken: Hong Kong is of such a distinctive, wonderful, energetic, exciting, successful city. And I just think that such an intrinsic part of that is the rule of law. The city's attachment to the rule of law and the relationship between Hong Kong's commercial life and the rule of law. So I hope that will be maintained.

[00:33:41] Ken: They're obviously pressures, times are changing. The world is changing. Not always for the better. But I hope things don't change for the worse in Hong Kong. I hope that Hong Kong manages to maintain those things, which has have made it admired, so strongly admired all over the world.

[00:33:56] Colin: I hope you are right, I'm optimistic. Things here change, but sometimes change is good and hopefully the rule of law will remain. And then we'll have you out here. Hopefully I can bring you out here and maybe instruct you if I get you admitted as King's counsel here, which is not that easy.

[00:34:14] Colin: And Ken, my lord, it's been wonderful chatting with you. It's been a privilege and honor. Thank you so much for joining us on Law & More.

[00:34:22] Ken: A great pleasure, Colin, and I'd just like to say hello to all of my friends in Hong Kong, and I hope to see you all again soon.