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- [00:01]
A
Ladies and gentlemen, welcome to the LSE for this online event. My name is Dr. Paul Apostoletis and I'm Associate Professorial Lecturer in the Department of Government here at the lse. I'm very pleased to be here to welcome Lord Falconer for the Robert H. Smith Family Foundation Lecture in Democracy with Benjamin Franklin House. And I will hand over to Dr. Marcia Baliciano, Director of Benjamin Franklin House, in a moment to provide some background on this lecture series for those Twitter users in the audience. The hashtag for Today's event is LSEDemocracy. This online event is being recorded and will hopefully be made available as a podcast, subject to no technical difficulties. As usual, there will be a chance for you to put your questions to Lord Falconer. To submit your questions, please use the Q and A feature at the bottom of your screen. Questions will be submitted to myself and I will pose as many as possible to our speaker. Please let us know your name and affiliation. We're particularly keen to hear from our students, our alumni and incoming students, so please do let us know. But now I'm delighted to hand over to Dr. Marcia Balaciano to introduce this event.
- [01:10]
B
Thank you, Paul. And thank you, Lord Falconer. It is an absolute pleasure to cooperate on this Robert H. Smith Lecture in American Democracy with the London School of Economics Professor. Particularly wonderful for me because I'm an LSE alumna, having completed my PhD in the Economic History department. So, as you said, Paul, a little bit of information about the Robert H. Smith Family Foundation Lecture in American Democracy. This is actually our 10th lecture and it's particularly poignant this year. It honors the late Robert H. Smith, a business leader and philanthropist, and also his daughter, Michelle Smith, who passed away in the last weeks. Very untimely, and she was a leader in her own right and very passionate believer in the power of history and art to enlighten and educate. So we at Benjamin Franklin house have about 40 public events a year, of which this is one of our centerpieces. Benjamin Franklin House is the only house still standing where Benjamin Franklin lived and worked. It is a 1730s building. It is located not far from the LSE, especially as LSE campus has expanded across that part of London around the Strand. So it is a place where he lived for about 16 years on the eve of the American Revolution, working to bridge the gap between the interests of the Crown and the interests of the colony. In addition to public events through the Robert H. Smith center for Scholarship at the House, we also welcome around in normal pre Covid times about 10,000 visitors a year who come to see our historical experience, which brings the history of the house to life through live performance, sound and visual projection and. And we also have a student science center where we serve, in normal years, about 3,000 school children free of charge in the building and out in the community. Franklin was very passionate about the power of digital, or maybe I should say the power of electricity, since he's considered to be the founder of electricity with his kite and key experiments, which happened supposedly in Philadelphia, but also he practiced on the shores of the Thames. So our series of activities has continued with really vibrant programming online, including lectures, Ben's Book Club, and also lots of programs for children and young people, including a Saturday Science Club. So that's what we do at Benjamin Franklin House. But let me introduce Lord Falconer, who is our very distinguished speaker today. Lord Falconer is an English qualified barrister and a partner in the London office of Gibson, Dunn and Crutcher. He's the former UK Lord Chancellor and the first Secretary of State for justice, spending 25 years as a commercial barrister before becoming a QC in 1991. And I know, Lord Falconer, you also hold a special role with the Labour Party and maybe you'll tell us about that. But we are fascinated about your remarks. They seem extremely timely on both sides of the Atlantic. So over to you.
- [04:54]
C
Marcia. Thank you very, very much indeed. I'm very honored to be delivering this short lecture today. Could Marcia Rai join with you? And express my sadness about Michelle Smith's passing over the last week, which is very, very sad. She was utterly committed to that interest in democracy that led to the Robert H. Smith endowing of this lecture. And it's very, very sad that she's passed away in the last week. I'm also honored to be speaking under the auspices of Benjamin Franklin House. Benjamin Franklin was a very, very distinguished friend of the United Kingdom who ultimately failed to bridge the gap, but to the benefit of the United States of America and probably to the disbenefit of the United Kingdom. But again, I'm honoured to be speaking under his auspices. I do think this is a enormously significant time for democracy and justice. And I think it's enormously significant both in the United States of America and in the United Kingdom. My remarks are specifically directed to the United Kingdom, but I hope those who are listening will see that. I think there are read across from what I am saying in relation to what's happening in America. In the United Kingdom, I think we increasingly look like we are becoming a majoritarian Dictatorship. All that matters now in our system is that you get a majority in the House of Commons and then you can do what you like. I say in parentheses that getting a majority in the UK House of Commons is a very different thing from a majority amongst the electorate. Indeed, it's a very different thing even from being the party with the most votes after a general election. But the point I wish to focus upon in my remarks this afternoon is that once you've got a majority in the House of Commons, all the old checks and balances that used to restrain governments, the Executive, in our system, appear to be under very real attack. Our United Kingdom democracy works because those who vote for the losing party feel completely safe. Although the winning party will do things they may not like, their own personal position is, is not at risk. Our democracy in the United Kingdom works because we have fundamentals in common right across the country. Yes, a commitment to democracy, but also a commitment to the rule of law, to freedom and to tolerance. And until recently, our sense of what was freedom was shared. We would not tolerate a government which could do what it liked, and we would not tolerate interferences with our basic freedoms. Now, the nature of our politics in the United Kingdom, and maybe beyond the United Kingdom views altogether too many of those traditional checks and balances which protected people, particularly those whose party who had lost in an election, who had protected those people from the government. Now very many of those checks and balances are regarded as the enemies of the people. Precisely how our traditional freedoms are preserved in the face of a government which does not fundamentally accept what the limits are on, what it can do is the dilemma that constitutionally we currently face. All too often we now hear, particularly in the media, that the checks and balances appear to be frustrating the democratically expressed view of the United Kingdom people. This happens at a time when, for completely different reasons, many of the checks and balances have had to go out of the window because of the coronavirus. The government currently sweeps away our freedoms by edict. There may be disagreements, for example, about whether or not the 10pm curfew is wise, but there is very little appetite for arguing that the government should have that power, they should have that power. Today, I want to address where we are in relation to the checks and balances on the Executive's power for action. And I believe that there are four particular checks and balances that we need to discuss. First, Parliament. Second, the media. Thirdly, the law, and fourthly, the civil service. First of all, Parliament, the executive in the United Kingdom is selected from the winning party in the Commons. If the winning party, which forms the executive, has a big majority, they control Parliament. They control the Commons in the sense that there is a reluctance for the governing party to bring down their own government. The way that the government loses power, where it has a parliamentary majority, if it loses a vote of confidence in the House of Commons. There are three times in the last hundred years in which a government in the United Kingdom has fallen because of a loss of confidence. Once in 1924, when the Liberals and the Labour Party came together to defeat the Tory government of Baldwin. That happened very shortly after a general election in which Baldwin's government had lost its majority. The next time a government fell because of a loss of a vote of confidence was the Ramsey MacDonald government in the same year, in 1924, then the Liberals and the Tories came together to defeat the Labour Party because, interestingly enough, it was thought that Ramsay MacDonald had interfered with a prosecution that was being conducted by the Attorney General, Sir Patrick Hastings, and that was regarded as so offensive to the rule of law that the other parties came together and defeated what was a minority government. And then the third time there was a defeat of a government in a vote of no confidences in 1979. Again, every single party came against the Labour Party in 1979, which by then didn't have a majority because of a series of defeats in by elections between 1974 and 1979. The ability of the government to be held to account in a very substantial way by the House of Commons in practice depends upon there being a hung Parliament, which is what happened in the 224s and in 1979. There will never be a situation where the majority party throws out its own government. The closest that ever got was in 1940, when there was a substantial rebellion against Chamberlain, who did have a substantial majority in Parliament. And that substantial vote against him, which didn't lead to a defeat in a vote of confidence, nevertheless led Chamberlain to fall and urged national government to take over from him. The Commons, where the government has a big majority, does not represent in our system, a substantial check or balance on what the government does. And things are getting worse in that respect, because there is a huge taste now in this government repeatedly to introduce bills which don't contain the provisions that determine how the law should be changed, but instead contain provisions which give ministers, in the future, going forward forever, the power to change the law by statutory instrument, which in practice means changing the law by ministerial dictate. And you can see it in the Private International Law Bill The Immigration bill, the Trade bill, the Agriculture Bill. It is the current form of legislating for this government, which means in the years to come, they can determine agricultural policy, they can private international law policy, trade policy or immigration policy by what they want, rather than requiring Parliament to change the law. And even though you can't get rid of a government that loses confidence where the law depends upon primary legislation, then very often you can force particular changes on the government that will become increasingly difficult. So the Commons does not look like a proper check. And their ability to force deals on the government to change, when it changed, the law looked like it's reducing. The House of Lords. The House of Lords, on the face of it, has coordinate power in relation to legislation to the Commons. But the House of Lords, as everybody recognizes, is essentially illegitimate in our system. It is not democratically elected. It can delay, it can revise legislation in minor respects, but it essentially can never hold out against the elected House on matters not just that have been referred to in a manifesto, but in relation to anything that is the central, or a central part of the Commons program, the Government's program. Because for an unelected group of people to hold out against the Commons would ultimately not carry popular support. We are in the Lords, a collection of the relatives of the mistresses of Charles ii, people who have made substantial donations to political parties, a few ex Lord Chief Justices, and in my case, somebody who shared a flat with the man who became the Prime Minister. All of us admirable in our own particular way, but a rag bag of people who don't have the legitimacy to say no to the direction of travel that is established in the House of Commons. So once you have a government elected, as we do now, unlike the United States of America, the legislature does not provide an effective check on the activities of the executive. And what's more, the direction of travel of this government is to reduce what limited powers they have. The second substantial check or balance is the media. And the media needs to be divided, I think, into three. Now, first of all, the print media. The print media is owned by sectional private interests. Substantial parts of the private media are in the hands of private commercial interests who favor a right wing position on most things, including Brexit. I have in mind the Telegraph, the Times, the Rothermere Group that owns the Mail. There are more left wing papers, the Delhi Mirror and the Guardian, but they are less significant both in terms of circulation and in terms of investment than the right wing newspapers. The numbers of people who are buying newspapers is going down dramatically. But that does not reduce the influence of the media, the print media, because the print media are the only sources. Now, apart from the electronic media, which I'll come to in a moment, which spend money on generating news. I don't mean making up news, but covering news and identifying the things that people find important. You will find that it's the Times, the Mail, the Guardian, the Mirror, the Telegraph that provides the content, both for the, lots of the content, the electronic media and, and social media. And that is an incredible influence on the way that we think and how they are, is in terms of the print media which feeds through to the electronic media and social media effectively completely unregulated. And it means that financial interest talks in relation to the print media which then feeds through to those other two sources and of media. And that has an undue influence on the way that we think as far as the electronic media is concerned. We are incredibly privileged in the UK to have the BBC. It's an incredible odd arrangement that it is effectively a state owned corporation, but it is a very independent minded state owned corporation that there's no government that I can remember since 1945 that has not been in a state of apoplectic rage against the BBC because it's not been sufficiently supportive. It is hugely influential. It is where most people get their news from, not necessarily from watching the television, but from seeing it on social media. It is the thing that very frequently keeps our politicians on the straight and narrow social media just to. Sorry, just to say one more thing about the BBC. It is under attack from this government because the power of the BBC, which is a power for good in my view, is something the government does not like. And the attempts to appoint somebody to be the chair of the BBC who is fundamentally absolutely at odds with the way that it is financed is an attempt to reduce its influence and thereby increase the influence of the majoritarian government. Social media is an echo chamber. If you're a Brexiteer or a remainer or on the hard left or the hard right, it's very, very important as a means of disseminating news and information. Who is it, as it were, the unaligned middle, they are influenced by what they see on social media. But the greatest source of material on social media is probably from those news organizations like the newspapers that I've referred to, which are constantly pushing things into social media. I don't think that we on the left or on the right should mistake those 5,000 people who like our right wing or our left wing tweets. That they represent the world. We should see the importance though, of social media as a platform in which information can be disseminated. The media is a very important check or balance. It is, if the BBC particularly loses its influence, something that the right wing print media can influence more than people think. The third check and balance is the law. We are a society that strongly believes in the rule of law. And by the rule of law we mean that we are not ruled by the dictates of politicians or members of the Executive. We are ruled by laws, we are protected by laws, and those laws cannot be changed except in accordance with a constitutional process. The significance of us being ruled by law is that our rights are protected. The rule of law carries with it not just that the right process will be gone through to change the law, but also that there are certain immutable laws that no government will take away in our society. In the United Kingdom, I would suggest that those immutable laws are the democratic underpinnings of our society. The independence of the judiciary and the basic rights of man, reflected at the moment in the Human Rights Act. The government does not like the rule of law. The Internal Markets Bill is a stunning break with the responsible acceptance of the rule of law by governments since time immemorial. And the acceptance of the rule of law is not just in respect to domestic law, but also in international law commitments that the government has entered into freely, which it did do in relation to the withdrawal agreement and the Northern Ireland Protocol. It is a thin end of a terrifying wedge to say that the government will not accept the law. Once the government does not accept the law, then the most vital protections of freedom are in danger. And the government's willingness deliberately to break the law indicates that they see the rule of law as something that can be traded either for a good negotiating position with the European Union or a good headline in tomorrow's newspaper. And it is absolutely terrifying because the message it sends is you can't trust the government to obey the law. And the message it sends to everybody else is why should we obey the law? If the government does not obey the law, it goes deeper than simply the Internal Markets Bill. There are two other aspects of it that are particularly frightening. The government unleashed the dogs of hell on the judges for binding against the government as they are entitled to do in relation to the first Gina Miller case, which said no more than if you want to change the law, you can't do it by edict because there's been a referendum. You've got to do it in accordance with those processes and they let the judges be attacked. And the judges have now become in play like politicians. The judges and I, regarded not as being independent arbiters of our laws and protectors of our freedoms, they are now regarded as, as, like, you know, lots and lots of people who live in Islington and read the Guardian insane remainers rather than independent arbiters. And that is very, very undermining of our society. The other attack is in relation to judicial review. The government is now considering whether or not they can reduce the circumstances in which there will be judicial review, so that the government is held less and less to the rule and letter of the law. Ultimately, freedom depends upon the government's being held the letter of the law. If they're not, they can do what they like. It will have a further knock on effect, which is one of the reasons why we have done so well in financial services and become an attractor of business in the legal world is because everybody knows where we are. We are the country above all that plays by the rules. We are the country above all that respects the rule of law. We have already trashed that reputation to some extent by the Government's approach in relation to the internal market bill, which continues. Our reputation will go down and our centrality as the place where financial deals are done, where disputes are arbitrated, where legal rights are determined, will go down. And that will have a substantial effect on the financial position of the country. The law, which was unchallenged as one of the checks and balances, now looks like it is being challenged. The fourth check and balance is the Civil Service. The Civil Service is bound to serve the government of the day, but they are impartial in the sense that they are not politically aligned and they are bound by the Civil Service Code. And the Civil Service Code requires them to act in accordance with the law. From my experience in government, the existence of a strong, impartial Civil Service, keen to serve the Government of the day, but equally bound by ethical and legal standards, is a very significant check and balance on what the Government can do. You will know that since this Government got its majority in 2019, they have sacked six permanent secretaries, they have sacked the Cabinet Secretary and they have forced out the chief civil servant lawyer in the system. Allowing the Cabinet Secretary to be treated like a junior Minister who can be asked to go at a moment's notice. And the Permanent Secretaries in the same way, inevitably will have an effect on on cowing the civil servant. They will not be as willing as they previously were to stand up for both ethical and legal principles, because they will know that what this government is looking for and is willing to seek out is a civil servant that is willing to do the bidding of the elected government, irrespective of whether it's ethical or legal. So those four checks and balances, Parliament, the law, the civil service and the media are all, to a greater or lesser extent, under attack from this government. It reflects a time in politics where the elected government is able to say all of those checks and balances are simply a way of denying the majority what it wants. Whether what the majority wants is Brexit, or whether what the majority wants is, for example, greater immigration control. We fundamentally change our society. If we regard this majoritarian principle as being able to override these checks and balances, it will reduce our freedoms. It will. It will reduce the toleration of our society, and what's more, it will make our country a much less attractive place both to live and significantly, to do business in. So there is our freedoms at stake, but there is also our prosperity at stake. And I am very, very worried. Thank you very much indeed.
- [29:02]
A
Thank you, Lord Falconer, so much for your presentation. We'll now open the floor to some questions. I'm going to ask one to just kick it off, if you don't mind. So I'm curious to know more about whether you think there have been any meaningful historical precedents prior to the current government, in the trend that you discussed, the worrisome trend towards the. Towards Parliament assigning or giving over to the government the power to make law in future through administrative means and basically vacating Parliament power in that regard. Is this really very new with the Johnson administration, or does this have precedence in prior, prior governments?
- [29:42]
C
There has been a trend prior to the Johnson government where governments, in including Labour governments, have been willing to pass what are called framework bills, where the bill gives the minister power to change the policy by statutory instrument, and sometimes what are called Henry VIII powers, where a minister is given power by statutory instrument to change primary legislation. So it has happened in the past and the justification for it in the past has been circumstances change so fast that you should give the minister the power to reflect changes in society by changes in the policy. What is new is that instead of setting out what the policy should be in the bill, with some Henry VIII and some statute instrument powers to fiddle around at the edges, you now have the whole giving the government the power to determine the whole policy by statutory instrument. And that is where the danger lies. I'll just give one example. Private International law requires the government to make agreements with other countries. They make agreements with other countries about, for example, child support, where the mother is in one country, the father is another, and then the child is with one or other of the parents. That carries with it the need to change your domestic law to give the child or the parent various rights against the other. Whenever we've entered into private international law agreements that give people those sorts of rights, we've always required primary legislation to change domestic law. Now the government has a bill before Parliament that will allow the government to make whatever changes it wants connected with any deal that it wants with another country by secondary legislation. And that means all the government needs to do is to enter into an agreement with another country and then it can change the law on child support in any way that it likes. And it's a very, very dramatic shifting in the balance between Parliament on the one hand and the Executive on the other.
- [32:04]
A
I see how that's the case. Okay, let's go to some questions from the participants. So a very good question from John Newham, a London University graduate. So John asks, do you think that proportional representation might help the legislature check the executive?
- [32:23]
C
I don't think that it would because I think the, that the issue here is about once you've got into power as a government, then it's the majority in Parliament which might be formed of more than one party, which then is the power that is unchecked by the checks and balances. We had a coalition government between 2010 and 2015, and many of the trends that we see happening now started then. And they started then because ultimately what promises the minority party had made in order to get some votes were then not followed through in government. The anxiety that I have got is in relation to what does the government do once it gets into power. I ask myself. For example, suppose you'd had proportional representation and suppose the government that had been formed out of a proportional representation system had been a government made up of the Conservatives and the UK Brexit party, would that majoritarian, would that government have have been any less willing to attack, as they would see it, the institutions and checks and balances which they would see as reflecting too much the views of, I don't know what you want to call us, them, the metropolitan elite, the die hard remainers? I don't think it would. And if it was 51% under a proportional representation system in favor of that grouping, it would have done exactly the same as what the Conservatives are doing now. So no, I don't think proportional Representation would be an answer.
- [34:21]
A
A couple of linked questions here. So one from Sarmed Haider, who's an undergraduate at the LSE and asks, the current future state of democracy looks grim. Is there anything that we can be hopeful about regarding democracy and the rule of law in the future? And then related to that, a question from Richard Stevens, who's retired head of psychology at Open University. And he asks, in what ways can we resist the government undermining these crucial checks and balances?
- [34:51]
C
I think things look grim at the moment, but I think governments that behave in the way that this government is behaving, and I say with, with diffidence the way that the government is behaving in the United States of America ultimately come croppers with the electorate. And the reason that they do is because big claims which they say can be delivered if they were free of the shackles of the checks and balances, depend upon delivering on those claims. And ultimately, I believe very, very strongly that neither the current government that is attacking the checks and balances nor the government currently in power, the executive in the United States of America, will deliver. And democracy is strong enough to make sure that at that stage the attacks that are currently being made will be pushed back. So my advice is one's got to stick with it and we've got to continue to stand up for the things that certainly in the United Kingdom make us strong, because I believe we have been so much stronger than so many other countries because of our commitments to the rule of law, because of our commitments, because to tolerance and freedom and human rights. And that makes us strong, both as politically free, but also commercially. And one has got to just weather the storm is my strong advice.
- [36:37]
B
If I can jump in, Paul, with a question for Lord Falconer, picking up that point about the situation across the Atlantic, very controversial issues around the Supreme Court and whether in an election year, with the election now less than a month away, the ruling government should be allowed to hold its hearings on its selected person to replace the late Ruth Bader Ginsburg. Now, the Republicans are pointing out that it's ingenuous that if it had been a democratic presidency and there was fear of a turn of party, that they too would be pushing to have their appointee added to the court before they would potentially leave office. But, you know, is this system of the US Supreme Court fit for purpose in the 21st century?
- [37:48]
C
The US Supreme Court is a very different institution from the UK Supreme Court. And the reason it is very, very different is because the United States, America, has a written Constitution which is the ultimate source of power in the uk. Parliament is sovereign over everything, and it can change any law that it likes. In the United States of America, Congress cannot change any law it likes. It's got to act in accordance with the Constitution. So the Supreme Court justices have absolute power over what the Constitution allows. And that has led to these huge policy issues, like racial discrimination, like reconstruction after the Civil War, like abortion, like the death penalty, like gay marriage being resolved not by the elected politicians, but by Supreme Court justices. So their position is very, very different from ours. And the consequence of having a written Constitution which allows policy issues to be resolved by judges means that you have got a system whereby your politics affect whether or not you become a federal judge at all, and then your politics affect whether you go to the Supreme Court. I mean, it's a. It's. I mean, make of this what you will, but in 2000, when the question was should President Bush Jr. Win the 2000 election or should Vice President Al Gore win the election, the Supreme Court ultimately had to decide who won on the basis that Florida looked like a draw. And they, the Supreme Court voted exactly down the lines of the party that had appointed the individual justice to the Supreme Court. So it's a very. It's a different system. Having said that, President Obama, when he sought to appoint somebody in his last year in office, the Senate, which was sufficiently controlled by the Republicans to prevent it, said they wouldn't allow him to do that in the hope that they would get a Republican president who would appoint it. I think that was bad on the part of the Senate because I think Barack Obama was right to say, I was elected for four years, not for three and a bit years. The very same majority leader, Senator McConnell, who said, you've got to wait so that the electorate can decide which president nominates the Supreme Court justice, that very same senator is saying, why on earth should you wait? Let's get straight on with it and resolve it as it happens. I think Senator McConnell is probably right in his second emanation rather than his first. But it makes you disgusted with the politicians for being so hypocritical. It makes the public think, how on earth can you ever trust the politicians if all they do is say what suits them at a particular time? So I think McConnell is wrong in what he's saying. I think he's wrong first time around. I think he's right. I think, you know, Trump, for better or for worse, was elected for four years. You should decide the question of who should be the Supreme Court. Justice nominee on its merits. The person that Trump nominated does not look to me a incompetent or hopeless lawyer. She looks like a quite distinguished jurist. She is plainly on the right. And the consequences going forward will be bad for the development of social policy. But it seems to me the American system allows for that. And I'm not sure that's a very good thing, but it is the thing and it is what the states in America agreed to in setting up the United States of America. So I think this is the consequence. I mean, just one last point, which is Amy Coney Barnett is maybe 48 years old. There is no age limit to a Supreme Court justice. A very, I think wrong principle has grown up that they will just go on and on and on. It comes from both sides. Ruth Bader Ginsburg was an absolutely brilliant Associate justice of the Supreme Court of the United States of America. If she had retired age 78 or 79, which would be eight years older than the UK judicial retiring age, President Obama would have been comfortably able to nominate somebody which had an impact on what the complexion of the Supreme Court would look like going forward now. So, I mean, I think Amy Coney Barnett has been nominated at 48. So maybe they'll get 52 years of a right wing justice. And I mean, I would imagine, you know, it'll be, you'll be a nominating justice, age 26, quite quickly in order to get a right wing justice for as long as possible. And that's a bad trend. You get them, they start too young and they go on too old.
- [43:33]
A
It seems to me when I was listening to you talk about the decline of the rule of law in Britain, that you could look at the Merrick Garland episode as evidence at the same or similar kind of phenomenon that's been happening in the US with the Senate's refusal to do its constitutional duty. But I sense in your, in your answer to Marcia's question also maybe hesitation about whether a written constitution in the UK would necessarily make things better in terms of the problems that you've analyzed. This relates to a question in from Donnie Reed from London University, who just asks plainly, would a written constitution address some of the problems that you've discussed?
- [44:11]
C
Yes, a written constitution would address a lot of the problems that I have said. For example, it would embed the ability of the courts to hold the government to law. For example, it would embed human rights in a particular way. I have always been against a written constitution because of the reasons I've rather gone through in relation to the United States of America. Ultimately, I think issues like abortion, the death penalty, racial discrimination should be dealt with not by judges, but by the elected representatives of the public. I think, though, in the light of the attacks that are currently being made on the checks and balances, one needs to address the question, is there a written constitution that one can have in the UK which would ensure that all that it did was to preserve the checks and balances without giving the Justices of the Supreme Court the sorts of power that the United States of America Supreme Court Justices had? I think there might be a way of doing that in having a very basic constitution which couldn't be changed in relation to the protection of the rule of law and the basic rights that people are given, but did not go beyond that and enshrined the principle that on anything to do with policy, and I appreciate that's a word that could become capable of lots of different meanings, but that enshrined the principle that the abortion type issue was not for the Supreme Court, it was for Parliament.
- [46:03]
A
Another good question here from Rocio Ferro Adams. She's a former UK Civil servant and says concerns about civil service have not been raised in ways which many people would have expected them to be raised. If civil Service impartiality is being influenced directly by the the government, I guess we do have a problem. But what can be done specifically about the problems in the Civil Service?
- [46:34]
C
I think that there's some legislation in place that protects the position of the Civil Service, but only in effect by requiring a code of practice in relation to the Civil Service. I think one needs to legislate to protect much more the impartiality of the Civil Service. And I think one needs to think of what is the correct appointment process for very senior Civil service servants, in particular the Cabinet Secretary and the person who used to be called the Treasury Solicitor but is now called the Head of the Government Legal Service. That's Jonathan Jones, who holds the office at present, who resigned with effect from April of next year. In the face of the government explicitly being willing to break the law under the Internal Markets Bill, if you can protect the position of the Cabinet Secretary and the Chief Lawyer within the Government, like you protect the position of the Lord Chief justice in legislation, then you prevent a situation arising where these civil servants are regarded as dispensable by the politicians, which is what's happening at the moment. So I think it is about the appointment of the Cabinet Secretary, the Chief lawyer.
- [47:51]
A
Another question to shift the focus to the media, the second source of checks and balances that you discussed. This comes from Alice Figgis, who I think is an LSE student, but I'm not positive. Alice asks, what should journalists on the left seek to do to combat the hegemony of of right wing politics and particularly the Murdoch press?
- [48:14]
C
Well, I think they've got to continue to do what they're doing, which is put the alternative point of view. But I think the key thing is there needs to be many more outlets than simply the Guardian and the Mirror expressing left of centre views. And that means it's not just the quality of the journalism which is incredibly high from the Mirror and the Guardian, it's also trying to find people who would be willing to support and that means with money, alternatives to the Mail, the Telegraph, the Times, the Sun. I'm not in favor of in any way closing them down, but I'm in flavor of a much more pluralistic journalistic print media system. I think, I think as well one needs to ask the question whether or not the provisions within our competition law are sufficient to protect against the concentration of the ownership of the print media in too few hands.
- [49:19]
A
Is there a role for public policy there too to encourage the diversification and multiplication of news sources?
- [49:26]
C
I think that there is a role for public policy, but it's difficult to know how one does it up to apart from preventing the concentration of too much ownership of the print media in single hands. Basically.
- [49:38]
B
If I can ask a question that's somewhat related to what you were discussing on the rule of law. So how we define the rule of law is important and they may include things like due process under the law, equal access to the law, access to remedy under the law. But I want to bring things back, turn your attention back over across the Atlantic because there's been discussion by the sitting president about being the law and order president. And you know, how do you see, could the rule of law become a pejorative term?
- [50:23]
C
Well, I mean, it was from the point of view of the country that abides by the law, terrible to see the President of the United States in the debate with Senator Biden. Vice President Biden appear to encourage the lawlessness of far right groups to put himself on the side of the proud boys who in a number of respects break the law. But I say that being critical of Trump, I come back across the Atlantic and I see our own Attorney General say in effect in a tweet, Dominic Cummings shouldn't be pursued for looking after his children. Could we please bring an end to this? When the Attorney General is responsible for upholding the criminal law in this country. Both Trump's support of the Proud Boys and Suella Braverman's support for Dominic Cummings is a signal from the Executive that they would regard politics as Trump compliance with the criminal law. If the people who are on their side in a culture or political war are under attack from the criminal law, then they side with the criminal activities of those whom they support rather than the criminal law. And it is incredibly eroding of true law and order because you are placing yourself on one side of a culture war rather than on the principle of law and order. So for both Boris Johnson and President Trump, who are trying to make themselves the law and order presidents and prime ministers, they are, in fact, the greatest underminers of law and order that one could possibly imagine.
- [52:30]
A
We're almost out of time, but we do have time for one more question. I'd like to ask a question that's. Or relay a question from Celine o', Donovan, who's a trainee solicitor. Celine asks to what extent should bodies providing a check and balance engage in traditionally, quote, unquote, unconstitutional actions such as judicial activism to protect the rule of law at this time?
- [52:55]
C
Well, the, for example, of the judges have got to determine what the limits of lawfulness on the part of the executive is concerned. The question of judicial activism raised its head in relation to the prorogation case. Did the executive break the law by a prolonged prorogation? The only people who could legitimately decide whether or not they had broken the law were the judges. And in the divisional court, they decided they hadn't. And in the Supreme Court, they decided that they had. Now, it would be regarded as quite an activist decision by the Supreme Court to have concluded that. But ultimately they did it in accordance with their judicial oath. It was well within their jurisdiction to do so. Very often difficult questions of line drawing arise for a judge's. But they've got to decide. And as long as they've got the power legitimately to do it, and they honestly believe that that is the right legal decision, then they should be entitled to do it. And the question carries with it the sense that in some way judicial activism involves breaking the law. It doesn't. As long as the judges are not straying way beyond their jurisdiction, and in relation to, for example, the prorogation case, there's no dispute they had the power to do it. It was a difficult decision and they came down on one side, an activist side, it's true, but most certainly not an unlawful side.
- [54:34]
A
That's important distinction. Well, thank you so much, Lord Falconer it's been a great pleasure to listen to you today. I'm sure it's been a pleasure for everyone here to hear your comments. Thank you also to Dr. Balaciano and the Benjamin Franklin House for putting on this event with us. As someone from Philadelphia, I'm particularly glad to be able to take part. And thanks to everyone for joining us today. We're most grateful that you could find time in your busy schedules to be with us. Thanks, everyone. So long.