Lord McCluskey tells of his time as a judge, a minister — and how he acted for a Beatle
John McCluskey has spent decades as a legal colossus — so you might expect some hesitation when he is asked to select his lifetime achievement.
Did it happen as solicitor general for Scotland in the 1974-79 Harold Wilson government, or was it his elevation in 1976 to the House of Lords, where he sat for more than 40 years until retiring this month? Is he most proud of being the first serving judge to give the BBC Reith Lecture? Or was it his review into the relationship between the highest courts of Scotland and the UK?
McCluskey does not hesitate. At the age of 87 and in declining physical health, but his mind still razor-sharp, he explains with customary precision and care: “I discovered in 1997 that the Labour government was proposing to put into the Scotland Act a power for parliament to remove judges.
“I was horrified at the thought that the political establishment should be entitled to remove judges on a simple majority vote. I fought it from start to finish and ultimately persuaded a majority of the House of Lords to accept my proposal that the removal of the judge could only be justified by an independent, non-political body led by a privy councillor. That became law and I believe it safeguarded the independence of the judiciary and prevented it being destroyed in a way which would have made us a mockery in the civilised world.”
McCluskey was admitted to the Faculty of Advocates in 1955 and worked as a defence lawyer and then a prosecutor. He is remembered for a rare appearance in the sheriff court (at Campbel- town) for the Paul McCartney cannabis case. When the ex-Beatle was fined £100, McCluskey asked if his multimillionaire client, who had flown in on a private plane and had three Rolls-Royces and a Jaguar for his entourage, could be granted more time to pay off the fine. He confesses it was Len Murray (his instructing solicitor) who gave him the line.“It was routine for him, but everyone found it hilarious.”
A year later, McCluskey became solicitor-general in Wilson’s Labour government. “It was fascinating to be involved in high-level political discussion and preparing legislation, but even more exciting to become a member of the House of Lords,” he says, “I had almost no knowledge of it as a political institution, but I found it to be full of outstanding people. Its critics have probably never sat in a debate.”
In 1986 McCluskey was invited to give the BBC’s Reith Lecture. “When I told Lord Elwyn-Jones [lord chancellor] that I would talk about law, justice and democracy, he said, ‘Is that all?’ ”
It was fascinating to be involved in high-level political discussion
How does he view that subject in 2017? “I don’t want to sound like a Eurosceptic, but I feel the difference between the common lawyers of the UK and the Napoleonic lawyers of [continental] Europe is very substantial. Here, we have independent judges who rise through the profession, chosen on merit from successful legal practitioners. I spent 29 years at the Bar before becoming a judge. On the continent you can become a judge at 26. There’s a career structure and you can be promoted, or removed.”
McCluskey retired from the bench in 2004, but then conducted two inquiries: the first, on the relationship between the highest courts in Scotland and the Supreme Court, concluded that only cases of “general public importance” should be referred to the Supreme Court, so that it ruled on points of law rather than individual cases. “The UK and Scottish governments accepted entirely what we decided, which was very satisfactory.”
Less satisfactory was the second inquiry, the “Scottish Leveson”, whose report was rejected after an outcry over a proposal McCluskey insisted was an opportunity for politicians to create a new body to oversee the media. Others saw it as an attempt to assert “political control”. He still feels they got it “right”.
McCluskey was close to Scotland’s devolution journey, working in the 1970s alongside his friend, the late Labour leader John Smith, on an early version of a Scotland Bill. “Powers have been devolved that the Scottish parliament does not want to exercise. That’s where I’m critical of Gordon Brown’s recent announcement that he wants to devolve even more powers. For a devolved administration, it already has enough powers and I wish it would concentrate more on issues of Scottish governance rather than so-called independence.” (He prefers “separateness”.)
At the start of Brexit, what are McCluskey’s hopes and fears for the future? Short-term he is not optimistic, but says: “My sense is that the maturity of our political and legal systems is such that we will eventually work out solutions to all these problems.”
Lord McCluskey receives The Times Lifetime Achievement Award at the Scottish Legal Awards tonight