The shadow Lord Chancellor speaks to John van der Luit-Drummond on the pillars of justice at the mercy of government and his party’s obligation to support its new leader
‘I hope to rebuff the attack on the Human Rights Act, make people understand there has to be a proper, functioning legal aid system, ensure the justice system is properly protected, and contribute – as much as I can – to a united Labour party that people have some confidence in as an effective opposition,’ says shadow justice secretary Lord Falconer, when asked to summarise his plans for 2016.
The justice secretary and Lord Chancellor during Tony Blair’s administration was in a candid mood when I interviewed him a week before the House of Lords retired for Christmas. It is a refreshing change to have a politician give you a straight answer in a climate where the majority are wary of straying from pre-prepared party sound bites.
Considering his outspokenness – and Blairite status – some might consider it surprising the former Fountain Court barrister emerged unscathed from one of the longest reshuffles in living memory to retain his justice brief.
Last week, the first of the working year, Lord Falconer of Thoroton (to give him his full title) was hotly tipped to be in the firing line as Jeremy Corbyn considered his first shadow cabinet reshuffle, so much so BBC Wales reported he had been broomed.
Made a life peer following the 1997 general election, Falconer had a distinguished political career during Blair’s tenure in office. The silk returned to the political frontlines in May 2015 by replacing Sadiq Khan as shadow secretary of state for justice, a post he retained upon Corbyn’s rise to power. He cuts a spritely figure as we meet at the Adjournment, the brasserie inside the House of Commons extension, Portcullis House. Crab cakes, sea bass, and festive mince pies were not, however, on the menu.
Falconer’s dramatic weight loss is well documented. In 2014 he shed over five stone on a strict diet of Diet Coke and apples. It is a regime he maintains. Before Falconer even arrives, Sophie, his parliamentary aide, has a Coke waiting for him. And, after exchanging pleasantries, the 64-year-old lawyer produces one bright green Granny Smith and one satsuma, both of which he tucks into during our conversation.
Right to die
Falconer is all action from the get-go. We begin by discussing the failed Assisted Dying Bill, the private member’s Bill sponsored – and emotionally invested in – by Falconer. The proposed law provided assistance for patients who had formed a ‘clear and settled intention’ to end their life, subject to the approval of two doctors and a High Court judge.
Considered by the Lords, the Bill missed out on a Commons debate due to the impending general election. Despite its garnering significant political and public support and containing arguably adequate legal and medical safeguards, MPs rejected the Bill last September.
Following an impassioned debate, a free vote saw 330 MPs decide against the plans. Just 118 MPs voted in favour. It was a result that greatly disappointed Falconer, not least because, in his opinion: ‘Parliament failed to come up with a solution to the problem. Everyone would agree that the current position is not maintainable.’
So, what next for ‘right to die’ campaigners? Falconer considers an ‘authoritative inquiry’ comprising respected thought leaders, and with cross-party support, should be formed to put forward recommendations on the correct course to chart for assisted dying.
‘The law remains a mess,’ he says. ‘People are regularly going to Switzerland to take their own life. Those who love and assist them are committing a crime when they do it. They’ve got the threat of prosecution hanging over their head, and the consequences of being subject to a criminal investigation are terrible, made all the worse by the fact that it’s in the wake of someone they love taking their own life.’
As secretary of state for constitutional affairs in 2003 Falconer proposed the abolition of the ancient office of Lord Chancellor. He has since admitted regret at campaigning to scrap the historic post. Nevertheless, the Constitutional Reform Act did move the goal posts, allowing non-lawyers to be considered for the role. Few would argue the first such appointment was anything less than a complete disaster. With the benefit of hindsight, is the Act’s architect now of the opinion that reform was a monumental mistake?
‘I still think it was the right thing to do,’ insists Falconer. ‘There are some lawyers that aren’t that great. You should have the widest range possible from whom to pick for Lord Chancellor. What is required from the role is somebody who understands the importance of defending the rule of law. Grayling was a dreadful Lord Chancellor, but the person who fell down in his duty – apart from Grayling – was David Cameron, who should have complied with section 2 of the Act, which requires him to pick somebody who is up for the job. And Grayling really wasn’t up to the job.’
Falconer’s return as shadow justice secretary – initially on an informal basis following Khan’s run for Mayor of London – was greeted enthusiastically by many legal practitioners left frustrated by the ‘failing Grayling’ years and dismayed by his replacement. So, how does Falconer rate the new ‘great liberal hero’, Michael Gove?
‘There are things Gove has done that I thoroughly approve of, such as getting rid of the criminal courts charge,’ he replies. ‘A lot of what he’s saying on penal policy I would agree with. Though I don’t know to what extent George Osborne is going to put his money where Gove’s mouth is.’
‘Must do much better’ is perhaps how Gove’s report card would read after seven months in 102 Petty France. ‘He has done absolutely nothing for legal aid,’ remarks Falconer. ‘He went ahead with a procurement process which was obviously done by people from the Brook Street Agency who knew absolutely nothing about the law. They were selecting which solicitors’ firms lived and died. It’s absolutely monstrous.’
A commercial litigation partner in the London office of US firm Gibson, Dunn & Crutcher, Falconer admits he was ‘happy’ more than 100 firms were challenging the Legal Aid Agency’s procurement process though a judicial review and civil claims. ‘Hopefully they’ll put an end to it, but if they don’t, then Gove should as a political matter. Why does he not understand this?’ he asks beseechingly.
The chance to see the Ministry of Justice’s creator go toe-to-toe with the department’s current overlord was a prospect worth salivating over. Unfortunately Falconer’s place in the Lords denies us such a juicy matchup. Between segments of orange, Falconer lavishes praise on Labour’s justice team, arguing that a face-off between the two justice heavyweights is unnecessary.
‘They’re an incredibly impressive and powerful team,’ he declares. ‘Karl Turner is a practising barrister, Andy Slaughter has been dealing with human rights and legal aid issues over a five-year period, and Jenny Chapman [the new shadow childcare minister] has been dealing with prison issues. I don’t think winning the argument depends on Gove and me being in the same chamber. It depends on us putting forward the argument and we are winning that argument.’
Legal aid revival
The former solicitor general is joined in the shadow justice team by Lord Bach, freshly tasked with reigniting the debate over harmful cuts to legal aid.
‘It’s absolutely critical we have a whole new settlement for legal aid that provides people with reasonable protections,’ explains Falconer. ‘I’ve described them as minimum protections. Everybody should be entitled to proper representation. If you don’t have that then any rights are worthless. Willy Bach’s inquiry will identify what we need for a permanent, durable legal aid settlement.’
Speaking at the launch of his review last November, Bach said the time was right to challenge the government’s controversial reforms: ‘Now, Labour has a leader that gets legal aid in a big way’. Though in agreement, Falconer credits a grassroots movement for reminding the party of legal aid’s significance to society.
‘It’s important that the leader understands these legal issues,’ he says. ‘The key thing is the sense that the party is committed. I’ve been going to the Labour party conference for over 20 years and legal issues have rarely been top of the agenda. It’s always been health and education. This year, human rights, the abandonment of legal aid, the closure of courts, the extent to which justice is inaccessible, are filtering through to people who are not engaged on a daily basis.’
Falconer is also hopeful that Gove, unlike his predecessor, understands the ‘terrible damage’ being done to the justice system: ‘The rule of law is important to us as a country. Many feel the justice system is in decline. The money required to keep it going is not the difference between financial ruin and financial “okayness”. It is a necessary amount, just like education or health. There are minimum standards in schools and hospitals, yet the government doesn’t understand you need the same for the justice system.’
Next on the agenda is the government’s embarrassing failure to deliver on a British Bill of Rights. Instead of presenting a Bill within the first 100 days of the new parliament, the Conservatives’ manifesto pledge to abolish the Human Rights Act remains buried in the political long grass as legal commentators mock leaked proposals as ‘seriously flawed’. Falconer is not so diplomatic in his criticism.
‘Why are they taking so long?’ he asks rhetorically. ‘Because it’s such a flipping awful proposal. The greatest brains in Britain can’t think how to make it anything more than a total load of horse manure. It’s a difficult thing to do with any degree of either intellectual or political coherence. It is manifestly wrong to put human rights in play as a political issue.’
Falconer becomes more expressive just thinking about a repeal of the Human Rights Act, gesticulating to stress his points. ‘It’s an absolute disgrace they think this is the right thing to do. The proposals advanced in October 2014 are shameful. In effect they say: “Let’s have human rights, but only the ones we want.” The rule of law has to apply to everybody, not just those that the Conservative government likes.’
‘What’s more,’ he continues, ‘it sends out the most appalling signal to other countries. If Britain, which plays by the rules, that crusades around the world for human rights, that is the foundation of the law on human rights – to take away the rights the government doesn’t like…’
He pauses, visibly flummoxed by the proposition. ‘Imagine the countries that will use that as a precedent. The whole point of having the European Convention is that you’ve got an external force, not a government saying: “This is what human rights are.” If you’re going to depart from that you’ve got to have a bloody good reason for doing so.’
While many have prophesised that the bells will soon toll for the embattled legislation, Falconer suggests the Act’s future is far from a foregone conclusion: ‘Every single opposition party will support the Human Rights Act. It only requires a small Tory rebellion for it to be saved. They’ve only a majority of 12. If you add the [Democratic Unionist Party], that might make a majority of 20. So ten to 15 rebels should be enough to save it and I’m sure there are those who will stand by the Act. The Lords are totally opposed to [the Act’s repeal].’
But does the government’s argument that European judges have overstepped the mark and strayed into territory where they do not belong hold any weight? ‘No,’ cries Falconer, banging the table for emphasis. ‘They’re legally illiterate about the whole thing.’
‘What the Human Rights Act said,’ he explains, ‘is that judges should have regard to the decisions of the European court. But they are not bound by them. The courts have departed from European Court of Human Rights jurisprudence from time to time when they don’t agree with it. The consequence is that Strasbourg is influenced by what the UK courts say and takes a different course.
‘I don’t know what idiocy the government have in mind. They want parliament to be sovereign, but it is sovereign. If parliament doesn’t want to change something then it doesn’t. Prisoner voting rights is the classic example. The Supreme Court determines what British law is, so it’s already dealt with by British courts and British law. If there needs to be a change in law then parliament has to agree with it. What is the point they’re making? I don’t know.’
It is impossible for any party to be an effective opposition if its members spend the majority of their time brawling among themselves. Stories of Labour’s incessant infighting have been rife since its failed 2015 election campaign and the subsequent leadership scuffle that saw Corbyn come out on top. Such backbiting between MPs is a huge distraction, and Falconer agrees there is a risk his party could take its eye off the ball with regard to more pressing matters.
‘It’s important for us to recognise that the purpose of a political party is to broadly reach an agreement on an issue and then fight for the principles we agree on,’ he comments. ‘There’s no doubt Jeremy won with a large mandate and that’s who the party wants. Our obligation, as senior members of the party, is to support Jeremy’s leadership and work hard to reach agreement on as many issues as we can.’
Falconer describes Labour’s inability to reach agreement on air strikes in Syria as a ‘frank exception’ on what was an ‘obviously exceptional matter’. On practically everything else, however, party members have to reach agreement, he adds.
‘We completely agree on human rights, legal aid, and the justice system. There is collective responsibility to them. We recognise that our purpose is to unite around a policy agenda and pursue that agenda. Otherwise we are not an effective political party.’
But how can Labour convey the worth of the justice system to a public that sees legal aid lawyers as ‘fat cats’, personal injury practitioners as riding a ‘whiplash gravy train’, and human rights champions as ‘liberal do-gooders’ and ‘terrorist sympathisers’?
‘Make people understand that human rights are important for people who find themselves in a criminal court or an immigration tribunal, but also to everybody else. Repeat, repeat, repeat, and make it mainstream,’ responds Falconer.
‘The reason why life is as it is in the UK is not because all of us go to court at some stage or another; it’s because there’s such faith and acceptance of the importance of the rule of law, which depends on there being a functioning justice system. What happens to that security if the justice system is no longer accessible to people? It’s getting that message across because everybody has faith in the courts and that they function effectively. That’s what makes our society a fair society.’
Apple, orange, and Diet Coke now consumed, the shadow Lord Chancellor orders another soda ready for his next meeting. With Falconer having provided me with his aspirations for this year, our interview draws to a close. In hindsight, he might consider adding ‘avoid Corbyn’s broom’ to the list if he wants to pursue his lofty justice goals in 2016.
This article first appeared in Solicitors Journal on 8 January 2016 and is reproduced with kind permission. Images copyright of Mary van der Luit Photography