NS Interview - Lord Falconer
Once parodied as Lord Dome, a crony who owed his status to Blair, he emerged as an audacious reforme
Lord Falconer of Thoroton has never shirked controversy. Hence his idea, announced just before we meet, that judges need no longer be drawn from mainstream lawyers. All you require, according to media reports, are four GCSEs. While the judiciary may worry about school-leavers dithering over whether to become an aromatherapist or Master of the Rolls, the Lord Chancellor is unrepentant.
"Somebody with no GCSEs could apply now, because there are no [such] requirements to be a barrister or a solicitor," Falconer says. "I don't think that remotely is the point. I won't be diluting quality, but I will be expanding the pool."
The announcement came on the day of the judges' annual dinner, where some aspects of Falconer's tenure seemed almost as unwelcome as salmonella.
According to the keynote speaker, Lord Woolf, Falconer's place in history would depend on whether he could reduce "the Treasury dragon to submission" and thus get enough money to remedy the courts' "parlous state".
Though Falconer is "an engagingly cheerful chappie", according to a previous character reading by the Lord Chief Justice, he dislikes having his eventual political epitaph pegged to courtroom blight. "Yes, it would be fantastic if there was more money for maintenance, but I am profoundly of the view that the greatest threat to justice in this country is not, emphatically not, the state of our court buildings." The biggest problem, in his view, is the lack of civil legal aid for the poor and vulnerable.
On Woolf's demand that he dispel the myth that the civil courts could be self-financing, Falconer is scathing. "It [breaking even] could be done. I strongly, strongly feel that it's important for the judges to get into the detail of these things. Do you spend your money more on repairing the courts' fabric or trying to give advice and representation to people who don't have it?"
Whether or not the judiciary heeds this call to spend more time with its balance sheets, it is fair to say that Falconer's slot in history will be owed to more than cleaning up graffiti on courthouses. Once parodied as Lord Dome, the crony who owed his status to his old flatmate, Tony Blair, Falconer emerged as a reformer of audacious scope. No other Lord Chancellor, in all the centuries of the office, has tried to abolish himself.
"I haven't succeeded in abolishing the office, but I have made the fundamental change," he says. The Lord Chancellor no longer heads the judiciary, and Falconer does not sit as a judge. The tights have gone, though a wig still adorns his office, and his forehead bears a faint horsehair rash. "I still have to wear it, because the Lords won't let me off from being Speaker," he says. But that role, he believes, will also slip away. In a final rechiselling of the divide between executive and judiciary, a new supreme court will house the law lords.
This process began as one of the most chaotic episodes of the Blair tenure. The Queen had not been told that the Lord Chancellorship was to go, traditionalists moaned. More relevantly, it emerged that the office was ring-fenced by statute. "It was initially terrible," Falconer says. "It was done in a very, very bad way to start with. I strongly say it was the right thing to do. It was great and statesmanlike, and it was the Prime Minister's decision to launch it like that. It did lead to suspicion. But, two years on, I wonder if so much would have been achieved had it not been done in that completely resolute way." Did he not advise Blair to read the small print? "No. I'm as much to blame as anyone." Would a more experienced minister have been more cautious? "I'm sure, yes. If I had been more experienced, I would have seen that it [would make] it more difficult by having such a bad beginning."
On Lords reform, radical change is finally being mooted. Leaks of plans by a committee chaired by Falconer and Charles Clarke say that the upper house would be renamed the "second chamber" and that up to four-fifths of its members would be elected. The size would be roughly halved, to 300 to 400 members serving six-year terms.
"There is such a discussion document, which I welcome, but there is not yet any agreement on party policy," he says, hinting at a quid pro quo on the elected element. "Confidence about [the primacy of the Commons] will determine the view it takes in a free vote on composition. I suspect there are people in the Commons worried that changes in the way the Lords are elected, if they are to be elected, might affect that primacy issue." His own prerequisites, besides primacy, are "the ability to delay to make the Commons think again, an independent element and removal of the hereditaries".
Falconer welcomed the Lords' fight to inject judicial scrutiny into the Home Secretary's control orders. He says: "It was a better act because of it, and the Lords did well in the scrutiny they brought to bear." He also believes the controversial new offence of indirect incitement to terror will reach the sta-tute book, but "the critical limiting factor is that it has to be an intent to promote terrorism".
"It's not about promoting a view," he says. "It's perfectly possible to distinguish between that and something much more targeted, such as someone saying in a mosque that they welcome those who have given their lives and hope there will be more." Is Iraq a factor in inciting terrorist focus on the UK, as Chatham House and others suggest? "I think that's over-simplistic. Iraq is not the prime cause of what's going on."
Falconer, the arch-reformer, is not always radical. I ask him about the mandatory life sentence for murder, deemed indefensible by the Law Commission. Even the Director of Public Prosecutions, Ken Macdonald, has claimed the inflexibility of the current law means defendants walk free. Lord Falconer is wholly unpersuaded: "I'm in favour of murder attracting a mandatory life sentence. Our system has been good at identifying different sorts of killing. [Take the case of] a carer who has devotedly looked after a partner or child and committed a killing that is a zillion miles from other sorts of killing: almost invariably, the courts are able to characterise that as manslaughter and produce a sentence that does not involve a disproportionate punishment." The current system, he believes, "has not led to injustices". The same cannot be claimed for the legal aid system, under which "50 per cent of our budget in the Crown Court goes on 1 per cent of cases". Meanwhile, the Bar Council chairman is complaining that barristers' pay has slumped. "The Bar is right that there are certain areas we need to look at, but the idea that barristers have taken a pay cut of 23 per cent is nonsense."
There are hints of a malaise beyond financial meltdown. The prison population is unprecedented, the National Offender Management Service is said to be in trouble, and its head, Martin Narey, has an- nounced his de- parture. Asbos have drawn children with disabilities and disadvantages into the criminal justice system. Does Falconer concede any crisis?
"You can't stop people offending. You can't avoid that 30 per cent of the time people don't turn up, so you have to adjourn trials. That people think there is a crisis is due to the fact that we're trying to address problems previously regarded as intractable. We're making progress, but there's a hell of a long way to go." How much further will Lord Falconer travel, given that his fortunes have inevitably been linked to those of a mentor grown suddenly popular? Might Blair stay for longer than he might have done? "He always made it clear that he would serve a full third term and go before the next general election, so how he is perceived doesn't change that basic proposition," he says.
Falconer admits to being ambitious, at least for change: "The past eight years of my life have been completely fulfilling. I wish I had been involved in mainstream politics a lot earlier. I was [always] very, very keen to be a politician. You can never quite work out why, in your life, you get knocked off course."
Despite speculation that he might return to the commercial Bar, he is adamant that his office forbids it. His place in history will depend, he hopes, not on the fabric of the courts or any run-ins with the Treasury, but on his reworking of an unwritten constitution and the justice system that underpins it.