Lord Falconer: 'The right time to make changes is when there isn't a crisis, when you are doing it from a position of strength'

The Monday Interview: Secretary of State for Constitutional Affairs
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Lord Falconer is a "Jekyll and Hyde" figure, according to Lord Woolf, the Lord Chief Justice, who used the striking analogy in a lecture last week. What the worried Lord Woolf was pointing up was the contrast between the two roles Lord Falconer of Thoroton QC occupies. One is that of "the friendly, non-political, Lord Chancellor"; the other is that of "the secretary of state who freely confesses to his fondness for demonstrating that he is a front-line, highly charged, politician."

Like the good lawyer he is, the last Lord Chancellor and the first Secretary of State for Constitutional Affairs seeks to turn this comparison to his advantage. "Putting aside what personal characteristics that may imply," Lord Falconer argues, the analogy expresses exactly why the two functions should be separated - as traditionally they haven't been - by abolishing the ancient post of Lord Chancellor altogether.

Urbane as ever - in manner, at least, more the genial Dr Jekyll than the evil Mr Hyde - Lord Falconer defines the two historic roles of Lord Chancellors. They had responsibility for the efficiency of the courts, legal aid, and so on - "political issues where the minister in charge should be looking to the public, like any other minister, and pursuing his agenda in a mainstream political way. The more effective a politician he is, the more effectively that agenda will be pursued".

But they also had the job of appointing judges on an objective basis. "This is not a satisfactory basis on which to run the relationship between the executive and the judiciary," he said. "Both ends suffer. For the sake of the political agenda and the proper independence of the judiciary, we should separate them."

But had the country been crying out for the abolition of the Lord Chancellorship and its replacement with a Judicial Appointments Commission recommending candidates to the Government? Hadn't this combination of roles - especially recently - worked rather well? Lord Falconer agreed that no well-founded doubts have arisen about the independence of the judiciary under recent Lord Chancellors, or about their quality. But then, he said, "the right time to [make the changes] is when there isn't a crisis, when you are doing it from a position of strength."

But when had there been a crisis? Lord Mackay, (the Lord Chancellor under Margaret Thatcher and John Major) had been accused by barristers of undermining the independence of the judiciary by proposing that solicitors should be granted rights of advocacy, said Lord Falconer. And relationships with the English bar had become "incredibly bad."

But leaving aside the fact that the accusation of undermining judicial independence was preposterous, Lord Mackay hadn't been persuaded that it was worth abolishing the job. No, Lord Falconer acknowledged, he hadn't. But there were, he insisted, other examples from the early 1900s and from the 1800s when doubts had been cast on the quality of political bias of judicial appointments. "It's not a constitutional arrangement where there are checks and balances." The new arrangement would not only liberate the constitution secretary to pursue a political agenda but in time widen the composition of the judiciary - not just by having more women and members of ethnic minorities but also a much wider social and professional mix of lawyers on the bench.

Having conceded that the independence of the judiciary will now be enshrined in the Bill abolishing the Lord Chancellorship and setting up the new Supreme Court, Lord Falconer is giving little detail on how final the ministerial right to reject the recommendation of the new appointments commission will be, or how many lawyers, judges and lay members will sit on it. Could as many as half of its members be lay? "I shall have to make my mind up about that. I am keen there should be a strong lay element."

No less controversial is his second Lords Reform Bill, to abolish the remaining hereditary peers and set up a new appointments commission to take out of the Prime Minister's hands the right to fix party numbers in the Lords, and to appoint independent members. Not because the two measures are themselves either undesirable or unexpected. But because the Government's critics are furious that it does not go further by introducing even a minimal elected element in what will now be an all-appointed House - and strongly suspect that it will become permanent. But Lord Falconer insists that this will not be the end of the story. "Is this intended to entrench an all-appointed house. It is not. We made clear that our intention was to to deal with the two obvious problems in the House. History and experience suggests that if you wait for some concluded final solution you make no progress on other things. That's the the history of Lords reform throughout the 20th century."

In a search for consensus on further Lords reform, the joint committee of both Houses, under the chairmanship of Jack Cunningham, a former Labour cabinet minister, will keep going. Mr Cunningham wasn't an enthusiast for Lords democracy - which was why Robin Cook, when he was the reformist Leader of the Commons, would have preferred Sir George Young to chair the committee. But, noted Lord Falconer, the members of the committee included several in favour of democratising the Lords. And the document launching "The Big Conversation" had specifically invited the Labour Party to consider a further stage of reform. "I am conveying the message as strongly as I can that the door is open and I'm keen for people to go through it. What that will involve depends upon having a proper discussion about it." If promotion of the Bill had left the impression that that was where the Government wanted to end up, that impression was wrong. "That is the critical message I wish to convey."

Lord Falconer flew to the US yesterday - in part to examine how it moved its Supreme Court out of the Congress building in the 1930s, just as a new Supreme Court building will be erected here to replace the Law Lords. Beside his own responsibilities, he enjoys the distinction of being Tony Blair's one remaining close personal friend in the Cabinet. While by no means complacent, Lord Falconer has an uncanny knack of conveying the impression that his old flatmate is capable of riding out any crisis.

On top-up fees: "We will persuade, through argument, that it's the right thing to do. We have embarked on the process of setting out the case with the parliamentary Labour Party and the public and I believe we will get through it and that we'll win."

Whatever the consequences of the weekend's failure to agree on a new constitutional treaty in Brussels, Lord Falconer firmly rejects the clamour for a referendum if and when the treaty is signed. Equally, rejecting the claim that the Government doesn't want a referendum because it might not win, he says: "We don't want a referendum because we, as a Government, have to make these decisions in a parliamentary democracy." The treaty involved "significant issues" but it did not have the momentous impact of, say, the euro, or of the country's decision in 1975, when it might have left what was then the European Economic Community. "It's about the consequence of enlargement and not about changing the basic relationship between Britain and the EU. Nor is he enthusiastic about the possible alternative of a free vote in the House of Commons to ratify the treaty. "This negotiation [is] ... a significant piece of government activity." So the Government is entitled to apply the whip to its MPs as normal? "Exactly."

As for whether Mr Blair's brief episode of palpitations in October resulted from a more long-standing medical condition - however unthreatening - than was apparent at the time? "Not as far I am aware. I didn't know anything about it." Hadn't the former US president Bill Clinton and even, reportedly, the Queen suggested as much? Well, replied Lord Falconer, an intimate friend of the Prime Minister for more than 30 years: "All I can say is I didn't know about it." Finally, to say that Lord Falconer is unrepentant about his remark last July that Tony Blair would run as leader in the next election "on the basis that he will stand for a whole term" would be to understate the case.

He made the remark long before a wave of speculation that the Prime Minister might go before this parliament is out, let alone some time after the next election. Even then it seemed like a lawyerly evasion designed to get round the fact that any modern Prime Minister who sets a limit to his time in office risks being seen as a lame duck. Emphatically repeating his remark of five months ago, however, Lord Falconer is having none of this. "That remains our position," he says. "It's not some legal circumlocution as you suggest. I haven't seen the circumlocution that you saw in it. I am trying to convey the idea that he will run and then serve for the whole term. That's what he would like to do. He's still got a huge appetite for it. There's lots of unfinished business." But won't this be rather unwelcome news to Gordon Brown, the man with every reason to suppose his chance for the top job must be drawing near? "The Prime Minister and the Chancellor are the two foremost politicians of their generation. The country is hugely served by them being Prime Minister and Chancellor."


1952: Born in Edinburgh

Education: Trinity College Glenalmond; read history and law at Queens' College, Cambridge

1974: Called to the Bar at Inner Temple; took Silk 1991

1997: Elected Master of the Bench of the Inner Temple

1997: Solicitor General

1998: Cabinet Office minister

2002: Home Office minister; responsible for sentencing and law reform

Married to Marianna Hildyard, a barrister; three children