Lord McCluskey

Lord McCluskey

When I was a child, my uncle John (Lord McCluskey) was a family legend. My father, Raymund, would recount how the family meals of his childhood were frequently dominated by ferocious intellectual debates involving my grandmother Margaret (who was one of the first women of her generation to graduate MA from Edinburgh University and a formidably intelligent woman), Lord McCluskey, my father and my Uncle Ronald. Their older brother, Uncle Desmond tended to stay out of these confrontations. My father often said that Lord McCluskey would argue one point strenuously one day and then change his position entirely the next and argue that line with equal force. Perfect training for a lawyer! His father Francis was also a solicitor.

It was only really when I went to university to study law in 1986 that I began to properly appreciate what a significant figure Lord McCluskey was in the legal profession. 1986 was the year he presented the Reith Lectures and as a student I read them avidly in The Listener magazine. However it was when I entered the legal profession in 1990 as a Crown Office trainee that I fully understood what a giant he was. From then on in my career it seemed that everyone I met would ask me if I was related to Lord McCluskey.

Lord McCluskey graduated from Edinburgh University and then was called to the Bar in 1955 after completing his national service in the Royal Air Force. He took silk in 1967.  He was a keen Celtic supporter, always very competitive and his tennis matches at Edinburgh sports club with his great friend the late John Smith QC were rumoured to be no holds barred, pulsating events. He and Smith worked closely together on the original, unsuccessful, Scotland bill.

In 1973 he defended Sir Paul McCartney against drugs charges, and caused uproar in court when he asked if the multi-millionaire could have “time to pay” a £30 fine.

My colleague Thomas Ross, advocate, tells the story of how he once represented Andrew Gallen retired solicitor. Having just set up his own practice Gallen got caught running between courts and incurred the wrath of the Sheriff who ordained him to appear next morning with representation. Gallen tipped off his colleagues who packed the public benches the next morning. When the Sheriff came on the bench he was confronted with Gallen flanked by Lord McCluskey who proceeded to defend Gallen vigorously before half of the criminal bar and won! Naturally Lord McCluskey wouldn’t take a penny for his services.

Lord McCluskey was appointed as an advocate depute in 1964 when advocate deputes were still political appointments. Lord McCluskey was made Solicitor General by Harold Wilson in 1974. Hitherto he had twice stood for Parliament, though unsuccessfully. In 1976 he was created a life peer as Baron McCluskey, of Churchhill and maintained his seat for 41 years before poor health forced him to retire in February of this year. He remained in office as Solicitor General until the Conservative victory in 1979, continuing thereafter as Labour Opposition Spokesperson for Scottish Legal Affairs until 1984 when he was appointed a high court judge. He then served as a judge for 20 years, presiding over a number of major cases including the trial of Paul Ferris in 1992, when it took a jury over two months to acquit Ferris of the gangland murder of Arthur Thompson Jr.

From an advocate’s point of view he was a formidable judge to appear in front of and didn’t take kindly to badly developed arguments. I don’t think with my uncle that his interventions were ever personal. He just wanted the maximum assistance from counsel in coming to his decisions.

He was opposed to the introduction of a Human Rights bill into the UK’s legal system, considering that it would undermine the decisions of an elected parliament. In his 1986 Reith Lectures he quoted a Canadian lawyer who described such bills as “a field day for crackpots, a pain in the neck for judges and legislators and a goldmine for lawyers.” His vigorous opposition caused him a problem in the appeal court where his decision had to be set aside in the case of Van Rijs where the European Convention on Human Rights was central to the appellant’s argument and where Lord McCluskey who had been chairman of the court published an article critical of the European Convention on Human Rights shortly after delivery by him of the opinion of the court.

An example of his independent approach was when he made headlines in 2005 calling for heroin to be legalised, saying current drugs policy did not work. Lord McCluskey was always interested in the facts not political or public opinion. He wasn’t concerned about the popularity of his views. He was a very influential figure in other battles including the defence of the need for corroboration. As an appellate judge he was never afraid to write dissenting judgements where he thought necessary or write individual judgments even if in agreement with the rest of the court.

He retired from the bench in 2004 but then conducted two high-profile inquiries, firstly on the relationship between Scotland’s courts and the UK Supreme Court. He concluded that only those cases of “general public importance” should be taken to the Supreme Court. “The UK and Scottish governments accepted entirely what we decided, which was very satisfactory,” he said. The second inquiry focused on the regulation of the press in Scotland.

While on national service he met my aunt Ruth Friedland and they married in 1956. She died in 2014. Lord McCluskey is survived by his children Mark, Catherine and David, seven grandchildren and two great-grandchildren.

In March he received a lifetime achievement award and a standing ovation at the Scottish Legal Awards where despite his failing health he delivered a very funny and powerful speech with the hilarious line “When you grow old the first clear sign is that you think policemen look young… well to me the pope looks pretty young!” In this speech he said that he considered his most important achievement to be helping to safeguard the independence of the judiciary from a provision of the Scotland Bill which would have allowed the Scottish Parliament to remove judges with a majority vote. One only needs to recall the threat by former Justice minister Kenny MacAskill to withdraw funding from the Supreme court in response to decisions which found Scots law to be in breach of the European Convention on Human Rights to see why it was so important to have this provision removed. Lord McCluskey took the view that Macaskill should have resigned because of this statement. When one reflects on recent events in countries such as Turkey and Poland it is not difficult to understand the paramount importance of an independent judiciary.

What is Lord McCluskey’s legacy? I think he stood out as someone who reached the top of the legal profession but was never comforted by being a member of the establishment. He always questioned what was going on within the legal system and within society. He was truly an independent judge and an independent and original thinker. His overriding guide was a belief in improving what we think of as justice.

Lord McCluskey’s funeral is to be held on Saturday 29 July at 11am at Warriston Crematorium, Edinburgh.