The man who fought for a Scotland where judges could serve without fear or favour
Life peer, former Solicitor-general and judge
Ifirst met John Mccluskey 40-odd years ago when he represented local objectors at the Drumbuie public inquiry – an epic exercise in determining whether a crofting village should be wiped out in the short-term interests of building concrete oil platforms.
Month after month, evidence was heard in the unlikely setting of the Balmacara Hotel lounge. Apart from reporting the issue at stake, a privilege offered by this spectacle was to witness the greatest legal minds of their generation at work – John Mccluskey, James Mackay, Donald Ross, James Clyde – all before they had Lordly handles attached to their jugs.
Maybe it was because of where my sympathies lay but, even in that company, John stood out, his legal incisiveness adorned by elegance of language, capacity for humour and a gentle air of great humanity. These impressions were never contradicted in our encounters thereafter; if I had the misfortune to appear before a High Court judge, I wanted it to be Lord Mccluskey.
He could also, of course, be a hard man when circumstances demanded. I was reminiscing this week with Tony Higgins, who used to run the Scottish Professional Footballers Association. John was a great football man and, for many years, sat on various quasijudicial panels thrown up by the Scottish game. At one time there was a Transfers Tribunal which adjudicated on the value of players.
John was presiding over a session at which the chairman of a Scottish football club was demanding a valuation of £500,000 on a prize asset. The tribunal halved that figure. When John intimated their decision, the aggrieved chairman barged out, casting a fierce glare in his direction. John murmured to Tony: “The last time a man looked at me like that, I sent him down for 30 years.”
Reading the obituaries, I was interested in John defining his greatest achievement as stopping the Scotland Act of 1998 giving Holyrood the power to sack judges, on the vote of MSPS. This seemed remarkable on several counts, not least that the option was advanced in the first place. Today, we associate politicians sacking judges with Poland and Turkey and it is generally thought to be a bad thing.
The reminder that political liberals who were at the heart of planning devolution should have proposed such a power seems strange. I can only think it must have reflected an optimism of the age. In the imaginings of its architects, the Scottish Parliament was to be different, consensual, filled with reasonable people, elected by proportional representation, taking bipartisan decisions around their hemispheric chamber. Judges would have no reason to be concerned.
Some of us did not require the benefit of hindsight to think all of that highly unlikely, but what few would have predicted is the extent to which the accretion of power towards the centre, as close to ministerial control as possible, would become the defining characteristic of Edinburgh governance. The combination of institutional empire-building and the Nationalist belief in everything being organised on a Scotlandwide basis as part of their entitled fiefdom has proved powerful. Judges would have had to ca’ canny, like so many others.
I looked back to John’s speech in the House of Lords when he effectively killed off the plan. “If pressed,” he said, “I could give examples in my lifetime of judges who have been appointed to the bench who should not have been appointed and would not have been appointed but for political and cronyist influences.” He did not wish to see this carried over into the new regime, far less extended by giving politicians the right also to remove judges. He elaborated: “We must avoid the danger that judges can be removed from office by politicians. Judges who can be so removed cannot be independent because independence in practice means freedom from government pressure, freedom from populist pressure and freedom from political pressure. It means that we, the judges, do not have to look over our shoulders at what others are saying about the kind of decisions we take.”
Not only were these words self-evidently wise but also, by implication, prescient about how devolution would work out. How many in Scotland today are constantly looking over their shoulders for fear of incurring political displeasure? How many quangos, advocacy groups and third sector organisations which once fought their corners vocally and were expected to do so are now extremely wary of upsetting the puffed-up rulers who control both appointments and purse-strings?
If there is any upside from the travails of Police Scotland and the cowed, non-barking dog that is the Scottish Police Authority, it lies in the way they have given centralisation of the justice system, unhealthily close to ministerial control, an extremely bad name. Never allowing Scotland’s politicians to forget that separation of powers within the legal system is an essential democratic safeguard, rather than an optional inconvenience, would be a decent memorial to Lord Mccluskey.
He was a defender of the House of Lords, where he was an active member for 40 years. This certainly had nothing to do with social status but reflected his respect for the expertise it contained and the quality of debate which was possible – not least when it involved highly significant issues about the evolution of the legal system. The question arises – where could such debate take place in Scotland? The procedures of Holyrood scarcely encourage it, even where the expertise exists.
As much as I oppose the House of Lords as currently constituted, I support the existence of a second chamber where speeches are not read from prepared scripts or confined to five minutes. Until Scotland provides such a forum we must rely on whatever channels are available to help safeguard us from bad legislation and meddling with our legal system that have not been thought through beyond the populist premises which appeal to politicians.
It’s worth remembering that in one of his last public interventions, Lord Mccluskey torpedoed just such a plan by applying a rigorous critique to the idea of abolishing the corroboration principle within the finely tuned Scottish legal system.
Now that he is gone, who will fire such missiles without fear or favour? In today’s Scotland, there are not many obvious candidates.
John Herbert Mccluskey, Life peer, former Solicitor-general and judge. Born: 12 June 1929 in Glasgow. Died: 20 July 2017 in Edinburgh, aged 88.
As one of Scotland’s longest-serving judges, his breadth of experience on the bench covered the full panoply of criminal behaviour. But it was his modest upbringing and utterly down-to-earth outlook that allowed John Mccluskey to truly understand the vast sweep of humanity that came before him.
Faced with an errant pop star, hardened crime boss, rapist, murderer or child mo lester, John Mccluskey administered the law with a deftness, compassion and principled stance that was the hallmark of a legal colossus who was also a man of the people.
Unlike some he never needed to enquire who The Beatles were, or ponder if Gazza was an opera. He had represented Paul Mccartney and was a dedicated football fan. And, though always objective, he did not remain untouched by the wasted lives of some of those convicted in his court, famously struggling to contain his emotions when sentencing a teenage girl to be detained without limit of time – a juvenile life sentence – for a murder which he believed she should never have been convicted of. She was later cleared.
Born John Herbert Mccluskey, the son of a solicitor and grandson of a president of the National Union of Scottish Mineworkers, he attended St Bede’s Grammar School in Manchester, where he lived for a time, and Edinburgh’s Holy Cross Academy, but did not consider he had had a particularly impressive education. By contrast, he said he never ceased to be educated by his career whether at the bar or on the bench.
It began with studies at Edinburgh University where he was a Vans Dunlop scholar and Muirhead Prize winner, graduating with MA and LLB degrees in the early 1950s.
National service then intervened, when he was a pilot officer in the RAF and awarded the Sword of Honour at RAF Spitalgate, before devilling for Lord Dunpark for a year. By 1955 had been admitted to the Faculty of Advocates.
He was standing junior counsel to Scotland’s Ministry of Power in 1963 and the following year was appointed to the Crown Office as an advocate depute, becoming Queen’s Counsel three years later and working as a prosecutor until 1971.
Then in 1973 he represented the Paul Mccartney, who had been charged with a number of offences, including growing cannabis on his Machrihanish farm. The pop star arrived in a private plane, met by three Rolls Royces and a Jaguar – the QC, accused and entourage all squeezing into the latter as the other cars provided a decoy for the media.
Mccluskey succeeded in gettingallbutonechargedropped and Mccartney pleaded guilty to cultivating cannabis. After the QC argued that his client had a genuine interest in horticulture, the multi-millionaire was fined £30. Mischievously the instructing solicitor suggested that Mccluskey ask for time to pay. “So I did, and the place erupted,” he later recalled, “it was the coup de theatre to the day.”
Outside Campbeltown Sheriff Court, amid much hilarity, the star’s wife, Linda Mccartney, snatched and proceeded to sport Mccluskey’s bowler hat.
But, for all the light-hearted amusement then, in subsequent years he witnessed the rising death toll from drug abuse and the huge upsurge in addiction and drug-related crime. The country’s drugs policy was not working, he said, and he believed that by offering heroin to addicts in a medically-controlled setting the criminal market could be eradicated – a controversial view but one based on evidence before him. He was also open-minded about the decriminalisation of cannabis. Following the Mccartney case, he became Sheriff Principal of Dumfries and Galloway for a year before being appointed Solicitor-general for Scotland in 1974 by Harold Wilson’s Labour government.
Two years later, Mccluskey, who had previously attempted on a number of occasions to secure a Labour seat himself, was made a life peer, becoming Baron Mccluskey of Churchill, and Scottish legal affairs spokesman. He also worked on the original Scotland Bill of the 1970s with his friend and tennis partner, the late John Smith, and continued to play an active part in devolution legislation.
As a Senator of the College of Justice in Scotland, between 1984 and 2000 he presided over 300 cases, was an editor on Butterworth’s Scottish Criminal Law and Practice series, and wrote the book Law, Justice and Democracy which followed his 1986 series of BBC Reith Lectures.
Among his high-profile cases was, what was then, Scotland’s longest and most expensive murder trial, the case of Paul Ferris, accused of killing the son of crime boss Arthur Thompson.
Mccluskey was said to have been warned that his home would be firebombed if there was a guilty verdict. As it turned out, a jury acquitted Ferris, who also faced a variety of other charges, on all of them. The hearing was estimated to have cost £4million.
Some years earlier, Mccluskey had taken the unprecedented step of asking the victim of an attempted murder and assault with intent to rape to give her views on sentencing her attacker. He said he had not known how to deal with the perpetrator but his request to the victim was dismissed by the Appeal Court.
He also dealt with the notorious John Cronin, who dressed as a priest to sexually attack a Tory party volunteer in her Edinburgh home. Describing him as “Walter Mitty gone mad”, the judge handed down a life sentence. It was later slashed to six years and Cronin went on to reoffend.
Mccluskey also took on a variety of roles beyond his work on the bench: he served for almost a decade as chairman of the Scottish Association for Mental Health; was independent chairman of the Scottish Football League compensation tribunal and of the SFA appeals tribunal and chairman of the John Smith Memorial Trust.
On retiral, he was Scotland’s longest-serving judge but continued to serve the legal and wider community. He chaired Age Concern (Scotland), the Scottish Government’s panel reviewing the UK Supreme Court’s jurisdiction over Scottish Human Rights matters and the Scottish Government’s expert group on the Leveson Report’ s recommendations on press regulation.
He was also an outspoken columnist for The Scotsman, criticising the scottish government’ s plans to abolish corroboration, the need for evidence in criminal cases to come from at least two sources.
Describing him as a man of immense stature within the legal profession, Graham Matthew, president of the Law Society of Scotland said he conducted himself without fear or favour: “He was a knowledgeable, highly capable and extremely dedicated individual who played a central role in the administration of our justice system… his role as a member of the House of Lords, whether as a Law Officer or as a member of the Cross Benches, ensured that he was able to contribute to the making of the law as well as its interpretation.”
Mccluskey’s contribution was recognised with a lifetime achievement award at this year’s Scottish Legal Awards, when he gave a speech laced with his characteristic humour, greeted by a standing ovation.
A private family man, who listed his recreations as tennis and piano, he was predeceased by his wife Ruth and is survived by their two sons and daughter and extended family.