Legal Privilege: Lord Falconer on being a lawyer at the heart of government

“Mandy, the first question you asked me is, am I a lawyer or am I a politician, and I have reflected quite a lot on that and actually, because of where I come from, because of what I did for 30 years, honestly, I’m much more a lawyer, probably, than a politician.

And ultimately, if you are primarily a lawyer rather than a politician, there are certain irreducibles as a lawyer that maybe the politician doesn’t have. 

“Obviously, compliance with the law is one, but also, lawyers who are in court the whole time are ultimately aware that what they do is under the microscope.

“If you behave in a way that lacks honesty in court, you’ll be absolutely finished off. You also are aware with your own clients, that if they go to court with a case that is crooked or dishonest or is a losing case, you, their advocate, will get absolutely caned in court. That makes you much more straightforward, sometimes too straightforward for politics, and it’s very interesting to look at the likes of Joanna Cherry, or if you look at Helena Kennedy, if you look at Derry Irvine, they are all brave, honest people who are QCs. 

“I may disagree profoundly with Joanna Cherry on a whole range of things in politics, but I do not question her integrity, or her fearlessness, and whilst there’s too much premium now on sticking to the party line, and I can see the benefit of it because it obviously proves you are not a divided party, ultimately, it is the truly fearless that change the world. And that is something that you see more in the law than you do in politics. 

“I’m really struck at the moment by what is happening in Scotland regarding the whole legal case surrounding the Salmond/Sturgeon affair and you have the advocate, Roddy Dunlop QC, fearlessly telling the Scottish Government that it is on a loser, to give it up, and meanwhile, the Lord Advocate saying, well, it’s not completely unarguable and so we can go on with the case. 

“Dunlop is fearless. He persistently writes, ‘this advice will not be welcome’ but he gives the unwelcome advice anyway, whilst the Lord Advocate, who is a lawyer first and foremost, I would have thought, has clearly turned into a courtier, and says, ‘oh, no, you can keep going’ because no doubt, that’s what his client, the government, wants to hear.

“The lawyer, Dunlop, was fearless in the advice he gave and the person who had become the politician, the Lord Advocate, was not. The consequences that followed for the government in that were just awful and sadly, avoidable. Seeing it play out in those pages and pages of documentation is just dreadful. 

It is interesting seeing the whole thing set out like this because you can see the way that Wolffe has been corrupted by politics. I don’t mean corrupted in any financial sense. I mean corrupted by the need to say whatever your boss or your client wants to hear. And that is the last thing that is helping your client.

“Look, during my political life, I have seen system clashes between the lawyers, on the one hand, who say you can’t do this or you should do this, and the politicians on the other, wanting something else. I mean, a very early example was when NATO bombed Kosovo. The British were heavily involved in the bombing campaign.

“I was just the Solicitor General, the Attorney General was a guy called John Morris, and we said to the Ministry of Defence, you can’t bomb some of the targets that you want to bomb, whatever the utility, because it’d be in breach of humanitarian law and because we were ministers, and we had that power, that gravitas, it was possible for us to stop that and the Ministry of Defence complied with the law. But all the time, as a lawyer in government, you are under pressure to try and trim on the law and basically, you must be steadfast and absolutely fearless.

“It is most clear in relation to prosecutions and you absolutely have got to hold the ring against anything that might embarrass the Prosecution Service, so you’re always under pressure to try and help the government out. The biggest example of that at the moment is Suella Braverman, the Attorney General, in relation both to her support for Dominic Cummings and the passage of the Internal Market Bill. She’s not fearless. And ultimately, fearlessness is the quality that is most required. 

“I don’t want you to think, Mandy, that I think the law is 100 per cent wonderful. I don’t think it is in many, many respects. I think the law can be much too establishment-minded and I saw that most clearly during the Hillsborough stuff, where after an initial inquiry done by a judge called Peter Taylor, which was good, the law really failed the families of the people who died in Hillsborough, because ultimately, the law took an establishment view.

“You can see that in this, the first coroner’s report, you can see that in the judicial inquiry set up under Lord Justice Stuart-Smith, they were all taking the side of the police and others and it was a disgraceful and discreditable incident. You can see it again in the Irish terrorists’ trials of the 70s and the 80s, where the judges took a toadyish line to the government. And so, I’m not under any illusions about what the courts are like but ultimately, the law stands for acting on the basis of evidence, decency and fairness. And those are qualities that I greatly admire. But above all, fearlessly defending things that the law defends, that’s what I believe in and sometimes that might not make me the best politician.

“I do think that politics values party loyalty, politics values going along with the received wisdom, and well, I worry that politics, in the case of the Scottish Government just now, valued the cravenness of James Wolffe, the Lord Advocate, and did not value the honesty of Roddy Dunlop. To its cost.

“The thing that is most striking when you come into politics from the law, when I came from the law, is that law values you for being straightforward in the opinions you give to your clients, you then come into politics and you find it’s almost like a medieval court, where the important politicians are not being told enough of the truth. And what the Nicola Sturgeon story tells you, by looking at those government documents, is seeing somebody so powerful within her own party and within her own government, that either she can just ignore advice she’s given or else everybody is falling over backwards to give her the advice she wants to hear. 

“It’s for the committee to decide the extent to which she knew what was going on and ignored advice or if she was lying to the parliament. That’s obviously yet to be resolved by all of those on the committee and by Mr James Hamilton QC in his inquiry.

“She said that it was because of the Lord Advocate advising that she could go on with the case that she continued, even after Dunlop had said you should throw your hand in. That is a profound misstatement of what was happening. Dunlop was unequivocal on 6 December that they should throw their hand in and on 11 December, the Lord Advocate says it wouldn’t be wrong to go on. That is a very different thing from saying you should go on. And if she is saying she was advised to continue by the Lord Advocate, then that is not what the Lord Advocate was saying on 11 December. He was saying it would not be improper to go on, even though there was clear advice from Dunlop that she should stop. 

“It is interesting seeing the whole thing set out like this because you can see the way that Wolffe has been corrupted by politics. I don’t mean corrupted in any financial sense. I mean corrupted by the need to say whatever your boss or your client wants to hear. And that is the last thing that is helping your client.

“It’s not for me to say that the Lord Advocate should resign. I am the Shadow Attorney General in England and Wales, I’m not his opposite number, but I am so profoundly disappointed by the way he’s let the law down.”

Clearly, the principle of law matters to Charlie Falconer. He feels it strongly. It’s in his blood. He’s the son and the grandson of Edinburgh lawyers. He’s married to a lawyer, his brother-in-law is a lawyer, his daughter is a lawyer. He is, he says, “a creature of the law”.

“It’s not my fault, but I am who I am,” he says. “The law matters so much to me, because it is the instrument which has completely influenced my life, and I feel very strongly that it has to be a force for good. So in a sense, the law letting people down, like in Hillsborough, like the Irish trials, like the failures of the Lord Advocate in Scotland, and of the Attorney General down here, it’s like the thing I admire most in life, proving not to be worthwhile, being denigrated. It’s personal. I feel personally let down by what is happening there.”

The law and how it is applied might be what fires Falconer, but he is also a political animal. A Labour Party member since the 1970s, he shared a flat while at university with Tony Blair and they remain very close friends. After failing to be selected to fight the seat of Dudley East before the 1997 election, on the basis that he refused to take his children out of private education, Blair elevated him to the House of Lords.

He was the first peer created on the new Prime Minister’s say so and immediately joined the government as Solicitor General. A year later, he took over the responsibility for the ill-fated Millennium Dome project following the resignation of Peter Mandelson and was nicknamed the ‘Dome Secretary’ as a play on ‘Home Secretary’. This would prove to be his real political baptism of fire.

I’m laughing about it now but it got so bad with the Dome that I had a conversation with the Prime Minister on the telephone, in which he said, in a very Tony way: ‘Oh, well, what do you think?’ I said: ‘What do you mean?’ And he answered: ‘Well, do you think you should perhaps just go?’ And I said: ‘Oh, well, if you want me to, I will.’

“Oh, it was disastrous in a whole range of respects,” he says. “But one killer form of the disaster was on the actual New Year’s Eve when everybody got stuck at Stratford station.

“Tony called me over and I tell him that there’s a bit of a problem because everyone has got stuck at the station as a result of there not being enough body scanners. It was very, very cold and he says: ‘Well, I hope you’ve made arrangements for the media to get to here and you’ll have special arrangements for them in place.’  

“And I say: ‘Oh no, I made sure that they are treated exactly the same as everybody else, so they’re all stuck at a Stratford station as well.’ Well, he grabbed me by the lapels, and it was sort of an indicative moment of the naive left-wing lawyer thinking everyone should be treated equally, and the more experienced politician who realises that perhaps you should give special attention to those who are going to judge how good or bad you are. And I was duly judged as completely useless. 

“However, I managed to achieve something that no other minister achieved during the Brown and Blair years, which was on one day in September, every single newspaper called for my resignation on their front pages. 

“I didn’t really realise how bad things were because I wasn’t sufficiently experienced as a politician, but what most stuck with me was that my four children, who in the year 2000 were 15, 13, 11, and seven, and my wife, were all conscious of this going on, and all of them saw the whole thing as the most extraordinary awfulness on the part of the media, how could the media get their husband-stroke-father so incredibly wrong? It was just inconceivable to them. It was the most touching and the most sort of heart-warming and life-affirming thing that could have possibly ever happened. So even though it was absolutely hellish at the time, it taught me that to have the support of one’s family really, really mattered, no matter what.

“I’m laughing about it now but it got so bad with the Dome that I had a conversation with the Prime Minister on the telephone, in which he said, in a very Tony way: ‘Oh, well, what do you think?’ I said: ‘What do you mean?’ And he answered: ‘Well, do you think you should perhaps just go?’ And I said: ‘Oh, well, if you want me to, I will.’ And he said: ‘Well, possibly, let’s have a conversation later, I’m in the middle of England now. I’m about to go to Hull to attend the 30th anniversary dinner of John Prescott being in parliament. Why don’t you come and see me tomorrow in Number 10 Downing Street?’

“So, we agree that we’ll meet the next day but, overnight, he couldn’t get to Hull because the Humber Bridge was blocked by lots of people protesting fuel duty going up. Lots of Welsh farmers protesting. Tony has to divert back to London but then in a variety of ways solves this problem. I go and see him during the day and he asks me what I am doing there and I say, ‘I’ve come to resign, as agreed’, and he asks me if I would mind coming back the next day to resign as he was dealing with the fuel crisis. So, off I go.

“He does well on the fuel crisis and I then come back again, and he says: ‘What are you doing here?’ My office was in the Cabinet Office so all it required me to do was walk back and forth, so it was fine. I said: ‘Well, as agreed, I’ve come to resign today’, to which he said, ‘Oh, I don’t think you need to resign today, nobody’s interested in the Dome today’, and that was the first day that the Dome had not been on the front pages with everybody demanding my head. So, my resignation was forgotten, and I survived. It just goes to show what a chance game politics really is.”

In New Labour’s first term, Falconer was appointed to so many ministerial committees that one colleague called him “the eyes and ears of the Prime Minister”, and when Blair resigned in 2007, Falconer followed suit, quitting frontline politics and returning to his legal career. He returned when Harriet Harman, Labour’s interim leader after the 2015 general election, appointed him as her shadow justice secretary.

And it’s in that role – even after Jeremy Corbyn’s shock election as Labour leader, shadow cabinet resignations, removals and refusals to serve – that Falconer remained, however unlikely he looked as part of that team. He now serves in Keir Starmer’s shadow cabinet and says Starmer looks like “a credible prime minister”, and that meetings now happen on time.

Falconer, though, has seen political fortunes turn on the head of a pin. He saw Blair’s legacy wiped out by the fateful decision to invade Iraq. Turning back to Scotland, I ask him whether he believes Sturgeon, as popular as she remains, will survive the current debacles.

“No political leader ever defies the laws of political gravity,” he says. “As you rightly identify, Tony was an incredibly popular political leader, he won two landslides, 1997 and 2001, then a third election in 2005 and he left power in 2007, still quite popular, but he’s not remotely popular now. The world view of you changes, because the world changes, and while I think Nicola Sturgeon is incredibly popular now, it’s very difficult to see that as being indefinite.

“We paid a price for an indifference to civic society saying we were going too far. I don’t know if that’s happening yet in Scotland but I’m saying that I think that the SNP government is acting like it’s got no real constraints, including over the courts, and at the same time it is not delivering on health and education.

“Labour got itself into that position in Scotland at an earlier stage and paid a price, paid the price from having practically every seat in the Westminster parliament to having just one, so, the fall can be very fast and very mighty, if both the public who are looking to improvement in, for example, health, education and the economy, and civic society ceases to trust you.

“I don’t know whether it’s happening yet, but that combination of poor results in health and education, and a government that thinks that it’s so big for its boots that it thinks it can just plough its way through institutions, is a combination that will ultimately, one would have thought, bring that government down. I’ve got no idea when, but it will happen.”