During his four years as Lord Chancellor, Lord Falconer was involved in some key strategic changes to the legal profession. Jon Robins looks back at his successes and failures


It is unlikely that Charlie Falconer will ever escape Lord Woolf’s description of him as ‘a cheery chappie’. The then Lord Chief Justice insisted that his quip was merely a reference to Tony Blair’s oldest chum’s famed affability. Many people read it as a carefully measured dismissal of a political lightweight. But does the former Lord Chancellor have a greater legacy?



‘The passage of the Constitutional Reform Act must be his greatest achievement,’ says Roger Smith, director of law reform group Justice. ‘He managed, with the degree of affability for which he is known, to get it through. We now see the consequences of that Bill. We’ve a Lord Chancellor in the House of Commons and we’ve a Judicial Appointments Commission up and running – and the sky hasn’t fallen in.’



It is ironic that by removing the requirement that the Lord Chancellor be a peer (or, indeed, a lawyer), Lord Falconer made it possible for Gordon Brown to replace him with Jack Straw.



‘His biggest achievement was winning the support of Tony Blair’, says David McIntosh, chairman of the City of London Law Society. Back in 1997, Lord Falconer, a friend of Mr Blair’s from their bachelor days when they shared a flat in south London, was parachuted into political life after having been tempted away, apparently with some difficulty, from his £500,000-a-year career as a successful commercial silk.



Lord Falconer started off as Solicitor-General, before being moved on to the cabinet office, where he was responsible for the Millennium Dome. He then had spells as minister for housing, planning and regeneration, and for criminal justice, before replacing Derry Irvine in June 2003 as the Lord Chancellor’s Department changed into the Department for Constitutional Affairs. This came amid a welter of constitutional reforms, which at the time were believed to have been rushed.



Mr McIntosh believes Lord Falconer’s greatest weakness was ‘failing to make the connection between fighting for access to justice and the independence of the legal profession’. He explains: ‘If the Lord Chancellor’s role historically has been as the link between the profession and government, then securing the independence and fighting the corner for the profession isn’t something he has excelled in.



‘To have fought hard for constitutional change, some of which is necessary, is one thing, but to constantly fall out with the various sectors of the legal profession – the bar, judiciary and solicitors – shows a lack of balance. It takes quite a lot to get the judges worked up.’



In May, often difficult relations between the minister and the judiciary seemed to hit an all-time low when the Liberal Democrat MP Alan Beith, chairing the all-party constitutional affairs select committee, told Lord Falconer that he had been in Parliament for 34 years ‘and I do not think I have seen such anger and concern on the part of the senior judiciary’. He was speaking after hearing evidence from the judges in the wake of the creation of the Ministry of Justice (MoJ). The issue of ensuring judicial independence – and the status of the Court Service within the new structure – was at the heart of the row, which has yet to be resolved.



Mr McIntosh has concerns about the profession’s independence closer to home and, in particular, over Lord Falconer’s view that the secretary of state should appoint the head of the proposed legal services board. In this context, it was interesting that Gordon Brown’s Green Paper, The Governance of Britain, said last week that the government would reconsider the power of the Lord Chancellor to reject a nomination by the Judicial Appointments Commission – one Lord Falconer fought hard to establish.



Mr McIntosh is also mindful of the perceived disaster that is currently enveloping legal aid. ‘I can’t think of an occasion where he has put the political agenda behind considerations for the legal profession,’ he adds. ‘With Lord Irvine, you felt he was a lawyer first and a politician second – with Lord Falconer it has felt the other way around.’



Against this is the argument that, under Lord Falconer, the Legal Services Bill has turned out as well as could reasonably have been expected by the legal profession. Some issues remain contested, but the principles have been largely accepted since Sir David Clementi recommended retaining professional involvement in regulation. Though some solicitors believe the bill is driven too much by consumer interests – and certainly Lord Falconer made great play of putting consumers first – the reality is that a bill drafted by Which? would have been far more radical.



As Labour MP Adrian Bailey, one of the few non-lawyers to contribute to last month’s second reading of the Bill, said: ‘Had the consultation process been so dominated by representatives of consumer organisations, we might have a rather different Bill and heard different comments today. Notwithstanding the praise that has been given, we have to recognise that, overall, the debate has been legally driven and legally dominated.’



Legal aid lawyers find it hard to resist the analogy between Lord Falconer’s handling of legal aid and his stewardship of the Dome. ‘Lord Falconer’s problem in all of this was that he was stuck in a position of saying there was no new money,’ says Richard Miller, director of the Legal Aid Practitioners Group. ‘If you have proposals for a market for legal services [as envisaged by Lord Carter] in which prices can go up as well as down, how can you then say there’s no more money? It doesn’t work like that.’



Mr Miller reckons that Lord Falconer’s ‘biggest failing’ was not making the case for more money for legal aid when there has ‘obviously been a very strong case given the amount of outside influence on the legal aid budget’. ‘It seems too often the [Moj] has been trying to trash the arguments as to why the legal aid budget has been going up, rather than actually acknowledging them, and using them to get the resources that are very definitely needed.’



However, he acknowledges the introduction of the legal aid impact test in 2005, requiring government departments to pay up if they are responsible for policy that results in legal aid costs. ‘I suppose that’s a positive in his favour,’ he says, ‘although it never seems to be enforced properly.’



Mr Smith shares the view that legal aid has been Lord Falconer’s ‘biggest failing’. ‘He has followed Lord Irvine, but not Lord Mackay, in not really being interested in legal aid and leaving it to junior ministers. This meant that legal aid policy went effectively on automatic pilot and no big political beast was willing to pick it up,’ he says. Mr Smith takes the view that it was ‘absolutely clear’ from the moment that franchising was introduced that ‘competitive tendering was where it was going to go if legal aid wasn’t turned around… Neither Lord Irvine nor Lord Falconer really got their heads around whether there was another direction in which it might go’.



Lord Falconer receives more positive reviews from specific interest groups within the profession. For example, there was a collective sigh of relief at the Association for Personal Injury Lawyers conference earlier in the year when he decided not to raise the small claims limit for personal injury on the grounds that this ‘would be reform which does not have the consumer at its heart’.



The association also welcomed the introduction, albeit rather late in the day, of a new statutory regime under the Compensation Act to control the new generation of claims companies which sprung into existence in the regulatory vacuum New Labour created by withdrawing legal aid from personal injury cases.



Likewise, family lawyers have similarly mixed views of Lord Falconer’s track record. The government’s review of the law on cohabitation was ‘very positive’, the legal protection for civil partners has been ‘fantastic’, and the introduction of conciliation appointments in the county courts has been ‘excellent’, says Karen MacKay, chief executive of Resolution. ‘But the delays in the family courts haven’t got any better – in fact, they’ve got worse. There haven’t been any additional resources available to get additional family judges in place.’ All in all, it is a ‘pretty balanced score sheet’, she adds.



This arguably sums up Lord Falconer’s four years in the job. Perhaps the writing was on the wall when the Department for Constitutional Affairs, after just four years of life, became the MoJ. No longer something of a backwater, the department is now key to much of Gordon Brown’s planning and has one of his key allies in charge. That the role has developed in such a short time to take centre stage is one legacy that Lord Falconer can certainly be proud of.



Jon Robins is a freelance journalist