Lord Falconer: “The rule of law is a joke to Tory MPs”
Following the Attorney General’s ‘unprecedented’ attacks on the Supreme Court, Lord Falconer believes the foundations of our rule of law are being dangerously undermined. The former Lord Chancellor talks to Tony Grew about the importance of upholding the independence of our judiciary – and why Geoffrey Cox must go now
Lawyers are often accused of talking in code, using language as a weapon to confuse and obfuscate. When we meet Lord Falconer in his office in the heart of legal London, he is succinct, angry and to the point. The focus of his anger is Geoffrey Cox and his statement to the House on the Supreme Court ruling on prorogation. Cox "can no longer be trusted as attorney general to uphold the rule of law and the integrity of the judges" he says.
"He should go and he should go now. Allowing his office to be used in this way is unprecedented and disgraceful and very undermining of the rule of law," Falconer says. "It makes one feel political ambition has overcome his duty and he has got an unquestioned duty to uphold the rule of the law and the independence of the judges, and to be the main voice along with the prime minister in a campaign against the judges is so disreputable."
A Labour politician calling for a Conservative to resign is hardly unprecedented. In fact it's par for the course. But Lord Falconer's call for Cox to go isn't based on party political animus. He is outraged, but he is also worried about an institution he loves even more than the Labour party – the law.
Any attempts to lure him into some anecdotes about Tony Blair – his flatmate who made him a peer and appointed him solicitor general and then lord chancellor – or about the current leadership of his party, his famous Diet Coke diet or his role in the Millennium Dome, are politely but firmly rejected. Lord Falconer is a charming and mild-mannered speaker, who chooses his words with lawyerly precision, yet his anger at the government's attacks on the supreme court and the underpinning of our legal order is palpable.
"It is perfectly legitimate for a government minister to say once all appeals have been exhausted that the law needs to be changed. Government ministers should not attack the judges because to do so is to undermine their authority. If judges feel they are going to be attacked if they come to a decision the government does not like, that will over time affect their willingness to be independent. It is a very very bad precedent. The judges know if ministers attack them that will unleash the dogs of war from the press as we saw in Miller 1 and we saw again with the Miller 2 case."
Geoffrey Cox "should go and he should go now"
Miller 2 refers to the recent ruling that prorogation was unlawful. Miller 1 was in 2016, when Gina Miller went to the High Court to prevent the government triggering Article 50 without getting the consent of parliament. The judgement led to a Daily Mail front page so infamous it has its own Wikipedia page. "ENEMIES OF THE PEOPLE" was the Mail's own verdict. Their readers were informed that one of the justices was an openly gay ex-Olympic fencer. The headline was above a story by James Slack, who is now the prime minister's press spokesman. Liz Truss, then the lord chancellor, was slow in recalling her oath to protect the judiciary. Only after the Bar Council had requested it did she release a three-line statement about the "rightly respected" independence of the judiciary. Lawyers throughout the country were unimpressed.
"You don't need to be a lawyer in order to understand that the judges need defending," says Lord Falconer.
"I think Robert Buckland has done a first-class job in defending the judges and being absolutely clear there are limits beyond which he will not go. Liz Truss was terrible in the way she sought or did not seek to defend the judges. The constitutional reform act only allows the prime minister to appoint somebody who is fit for the office. The PM should make sure before you appoint a lord chancellor he or she is going to defend the judiciary properly."
Truss's tardy defence of the judges, however, is a three-year-old story. Falconer is furious that the latest Supreme Court case, on prorogation, has seen Conservative MPs call for political vetting of judges. He quotes the attorney general's comments in the Commons that there might need to be parliamentary scrutiny of judicial appointments in the future.
"In that same session he called parliament a disgrace, the opposition a shower and most significantly the Supreme Court wrong. He is a lawyer saying that. The senior law officer of the crown is saying the supreme court is wrong and in the future they need to be politically vetted by parliamentarians. The only basis for him saying that is they are either incompetent, as all 11 of them have got the law wrong, or that they were politically motivated in the conclusion they reached. Later in the same day the prime minister said, 'Let us be clear that we are as one in respecting the supreme court and we are as one in thinking that judgement was wrong.' The attorney general nodded."
Cox's new-found enthusiasm for political vetting of judges "must have been because he hopes it will be introduced, or to intimidate the judges” Falconer says. “What other reason you can think?"
He continues: "The suggestion that our judges should be vetted by parliamentarians before they are appointed is to bring politics massively into the appointments. It is what happens in the United States of America. The consequence of that was that when the Supreme Court came to decide who was the president in 2000 – the hanging chads case – they did not decide it on the basis of the law, they decided on the basis of which political party had appointed them, so the Supreme Court reached its conclusion straight down party lines. They have got a different system to us – they want the judges to resolve political issues. We do not and our judges do not resolve political issues."
Falconer does not agree with the suggestion the attorney general should be a non-political appointment. It is Cox alone who is the focus of his ire: "I think it is very important for the attorney general to understand politics, but if you look at his immediate predecessors – Jeremy Wright, Dominic Grieve – both of them would be regarded as completely reliable as attorneys general. The Lord Chancellor Robert Buckland – who also has special responsibilities in relation to the integrity of the law – he is not transgressing, he is not joining in a campaign against the judges. You really should be able to rely on the attorney general in the defence in the rule of law. There isn't a lawyer or a judge that I have spoken to who is not incredibly perturbed by the unreliability of the attorney general."
'Is there nothing that these people will not put at risk for their fanatical desire to deliver as tooth and claw a Brexit as possible?'
A curious by-product of Brexit is that arch Conservatives have overnight become radicals. The leader of the House of Commons, Jacob Rees-Mogg, is a new convert to Lords reform – or Lords abolition. Lord Falconer says his depiction of the Supreme Court decision on prorogation as a constitutional coup was "an outrageous thing to say".
"It shows such a profound lack of understanding of the constitution, something he prides himself on understanding when he is so ignorant of the whole thing, it is distressing. I think it indicates that he is prepared to throw all constitutional protection to the wind simply in order to get what he regards as an 'ok' Brexit deal. It is worrying because it means there is nothing which he would not regard as sacrificeable."
Parliament returns this week to a Queen's Speech. The government will set out its legislative programme, but a definitive solution to Brexit is still elusive. Falconer is clear what the 2016 referendum was not about.
"We did not vote to undermine the Good Friday Agreement. We did not vote to make the judges political. We did not vote to undermine the rule of law. The hypocrisy of Conservatives like Geoffrey Cox and Jacob Rees-Mogg to throw their duty overboard. Rees-Mogg is the leader of the Commons, there to protect the rights of the Commons as a whole, and there was he scuttling up to Balmoral to give bad advice on prorogation, happy to see parliament closed down – not much of a leader he turned out to be. They are a real disgrace. To put the gains of the Good Friday Agreement at risk. Is there nothing that these people will not put at risk for their fanatical desire to deliver as tooth and claw a Brexit as possible?"
In any usual circumstances a politician jumps at the opportunity to set out a new policy or tell a faux modest anecdote. But even at the end of our time together Lord Falconer keeps coming back to the same fundamental point.
"What is coming down the track with the Benn Act and whether or not the prime minister will comply with it raises another threat to the rule of law. The rule of law is a joke to Tory MPs. The rule of law is now synonymous with anti-Brexit activity. The most important thing is to ensure the rule of law is protected. That is the key thing. Always."