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Sat, 6 June 2020

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Lords Diary: Charlie Falconer

Lords Diary: Charlie Falconer
4 min read

A forthcoming almighty constitutional row, questionable reshuffles and defending the judiciary, the more things change, the more they stay the same for Lord Falconer.


Suella Braverman’s appointment as attorney general provoked a storm on reshuffle day. No complaints about her qualifications. It’s her views.

The attorney normally stands up for the law and the judges in government. Precious few other ministers do. But she doesn’t like the Miller decisions, the Human Rights Act, or judicial review over the last 60 years.

It’s unclear what she and her fellow judge bashers want. Let politicians have a say in who becomes a Supreme Court judge? Hard to imagine anything more politicising. A statute which says judges are not allowed to make political decisions? Their decisions aren’t political – they are legal but frequently have political ramifications. Breaking the law is ok if it’s done for political reasons?

Rewriting the Human Rights Act? The government could probably get their definition of human rights – whatever it is – onto the statute book. But human rights provide protection against the state. If the state can define what those human rights mean, the citizen is pretty powerless. Signing up to the European Human Rights Convention means human rights are not just the government’s view. To abandon that would put us on a par with countries who claim adherence to human rights but only on their terms.

The judges held the government to the law during Brexit. They didn’t stop or delay Brexit. They simply said that the rule of law did not disappear in the face of the referendum result. Now the government want it to disappear as a fetter on things the government wants to do. Just when the citizen needs it most.

There is the almightiest constitutional row coming. If stage one of that row results in judges’ wings being clipped by this government, using its parliamentary majority, then stage two of that row comes when there is a new government after a general election. The only remedy then is a written constitution.

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On the day of the reshuffle I attend the swearing in of the deputy president of the Supreme Court, Lord Hodge, in the Supreme Court building in Parliament Square. The president is Lord Reed. Both president and deputy president are from the Scottish bench. They are both low key, very well-respected lawyers without an ounce of political bias. The idea they are politicised is for the birds. There were speeches. They did not mention the possible clipping. These were 12 judges ignoring the brouhaha across the square, quietly going about their business. Lord Mackay of Clashfern, the former Conservative lord chancellor, was there proud to see his fellow Scots do well. He, unusually now, is trusted by politicians and lawyers alike. If there is to be a commission on the constitution, hard to imagine a better person to chair it than he. I’m quite sure he will not thank me for suggesting it.

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I spoke to Marie McCourt, the mother of Helen McCourt who was murdered by Ian Simms in 1988. He refuses to admit his guilt, or to disclose where Helen’s body is, causing her family huge distress. The evidence of his guilt is overwhelming. The Parole Board has ordered his release despite this. Marie has brought judicial review proceedings against the Parole Board for allowing his release. It is very difficult to conclude he is safe when he continues with this cruelty. She is a very brave woman who has suffered for so long. Justice matters so much in any case of serious crime. This does not look like justice. Whether she is right will be decided by judges very soon.

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I debate the issue of whether the judges have become too political with Lord Sumption, the former Supreme Court justice, on the Today programme on Friday. He says they have – I say they haven’t. But we both agree no government intervention is appropriate. He well understands the price we will pay if there is intervention. The judge bashers will pray him in aid because he is so clever. Brains aren’t everything.

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