Constitutional reform

Lord Falconer looks back to legislation he introduced 20 years ago

A former lord chancellor who served in Tony Blair’s Labour government has described Donald Trump’s “refusal to obey court orders” and his “unleashing” of “political vituperation” on judges who made them as “wrong and very, very dangerous”.

Lord Falconer of Thoroton speaking at Middle Temple this week

Lord Falconer of Thoroton, a cabinet minister from 2003 to 2007 and now a Labour backbencher, was addressing the Middle Temple Historical Society on Tuesday evening about constitutional reform. While policy was a matter for the politicians, he argued, it was essential they accepted the authority of the courts.

That led Falconer to defend US judges against the US president:

Trump told NBC on Sunday: “we have thousands of people… some of the worst, most dangerous on earth — and I was elected to get them the hell out of here, and the courts are holding me from doing it.” And he expressed doubt about whether he had to uphold the constitution.

President Trump’s refusal to to obey court orders and his unleashing, on judges who make those orders, political vituperation is wrong and very, very dangerous. It weakens the arm of the state that holds the executive to the law and thereby protects the citizen from oppression by the state.

Take away that protection — and it is the courts that are the key protection — and the freedom we have enjoyed and regarded as our defining strength is put at risk.¹

Falconer’s lecture marked the 20th anniversary of the Constitutional Reform Act 2005, which he had seen through parliament. The legislation refashioned the role of the lord chancellor, created the UK Supreme Court and set up an independent body for selecting members of the judiciary.

These major changes had been announced by Blair two years earlier with no prior notice to the judges and no attempt at consultation.

“There was great anger at the abruptness and lack of consultation,” Falconer recalled. But senior judges understood that the changes were going to happen and engaged in detailed negotiations from the outset.

Even so, he continued, the House of Lords did everything it could to block the changes.

He accepted that prior discussions might have made it easier to get the reforms through parliament. But Falconer had no regrets. If the changes had been the subject of lengthy consultation before they were adopted as government policy, he doubted whether they would have got through at all. “The continuing commitment of the government to the changes was in part the result of the enormous row their announcement provoked,” he said.

Blair’s announcement of the reforms in June 2003 coincided with the resignation of Lord Irvine of Lairg as lord chancellor and his replacement by Falconer. Speaking at Middle Temple, Falconer described Irvine as a towering figure who drove through the Human Rights Act 1998 as well as ensuring that 90 per cent of the hereditary peers left the House of Lords and devolution was introduced in Scotland and Wales.

Irvine was “uniquely forceful and confident,” said Falconer, “and completely trusted by the prime minister. That trust was profound and justified.”

But Irvine had approached government through the eyes of a careful and very talented lawyer, Falconer said. That was not the culture of modern government. A century earlier, lawyers and politicians had been allies. But by 2003 they were on different sides.

Falconer then traced the profound structural changes we had seen during the 20th century. Before the First World War, barristers who became lord chancellor, lord chief justice and attorney general would also have sat in parliament. After the Second World War, Lord Goddard became, in effect, the first non-political lord chief justice.

The last Conservative lord chancellor appointed before the Constitutional Reform Act became law was Lord Mackay of Clashfern KT, now 97, who held the post from 1987 to 1997. He was a great lawyer, said Falconer, hardly partisan at all and a scrupulous upholder of judicial independence:

And yet, for many years, he was loathed by many of the English judiciary. The attacks on him by senior judges were intensely personal. Some of them would turn their backs on him and his wife at social functions. The language of their attacks on him was wholly inappropriate.

Falconer cited remarks made in the House of Lords in 1989 by Lord Lane, the serving lord chief justice, about Mackay’s plans to allow solicitors to obtain rights of audience in the courts that had hitherto been available only to barristers.

Lane described Mackay’s consultation paper on the topic as “one of the most sinister documents ever to emanate from government”. Warning peers that the government’s proposals would undermine judicial independence, Lane famously said that

loss of freedom does not happen overnight… oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up step by step; and all of a sudden the unfortunate citizen realises it has gone.

Constitutional reform had led to an independent system for selecting the judiciary. Falconer thought that if that system had not been in place by 2019, when Boris Johnson lost the prorogation case in the Supreme Court, the then prime minister would have selected the most deferential judges each time a vacancy came up.

Falconer concluded:

The effect of the Constitutional Reform Act 2005 is that the debate about the role of the courts and the law can take place with no fear that the politicians can sweep aside the protection of the rule of law…

That democracy depends on the rule of law is beyond argument and debate. The judges and politicians had come to that conclusion themselves over the 20th century. The statute book caught up in the first decade of the 21st century. And I’m very glad they did.

1. Falconer omitted this passage from his speech because he was running out of time. But it was included in the printed text which he stood by and authorised me to report.