The UK Supreme Court–the debate polarises and takes on new dimensions

I wrote yesterday’s blog (see below) last night, prompted by an email from John Higgins, as a kind of rumination on the issues. But this morning, this debate takes on a new form, given extensive coverage on the front page of Sunday Herald leading to a five-page analysis on pages 10 to 14. The debate is not entirely balanced, but I am not a great fan of the concept of balance if it suggests equivalence where none exists. I would class the Sunday Herald as partisan on the side of the Union (I am partisan on the side of independence) and be in no doubt, in spite of much high-minded protestations to the contrary, this debate is about the Union and about the impending referendum that threatens it.

The battle lines are being drawn, and the professional classes of Scotland, including the legal profession, are deciding on which side of those lines they will stand. To say that they are not influenced by their party affiliations and their stake in the survival of the Union is disingenuous. The Scottish Parliamentary election result of 2007 was an unpleasant surprise to the UK Establishment, to Westminster, to unionism and to the Labour Party in particular: the 2011 election result has been a profound and unsettling shock to them.

In deciding where we, the people of Scotland stand in this debate, it is important not to confuse the concept of justice and the rule of law with the system of justice and those who administer it – the courts, the lawyers, the advocates, the judges. The justice system is just that – a system and a process that attempts to dispense justice, but often fails, as all processes sometimes do, because they are operated by fallible human beings, who have personal objectives, personal ideals, personal political orientations and affiliations, ambitions and careers.

The law, as a profession, is in substantial part, a commercial enterprise, one that seeks to uphold high ideals and principles within the context of making money and securing career advancement. The professional bodies that represent the lawyers are like any other professional body, e.g. the medical profession, the police, architects, accountants, estate agents(!) – part high-minded defenders of ethics and principles, part trade union, attempting to maximise, secure and defend the privileges and earnings of its members.

In this latter role, they have always been spectacularly successful, and that success is in no small part due to their influence on the political process through their dominance in the UK Parliament and the Lords, and their ability to accommodate themselves to the influence of the political process on them. The legal profession across the globe operates in this way. To the degree that they achieve a balance between these often competing roles, the society of which they are a part is a just one.

The Sunday Herald story and report – and a bit from Scotland on Sunday

In the first column of Tom Gordon’s report a grenade is thrown into the debate -

But the Sunday Herald can reveal the present row may be just a warm-up act for a far bigger constitutional battle. For while MSPs were getting in a lather over Salmond’s street fighting style, the Supreme Court was  last week being asked to kill off an entire act of the Scottish Parliament.

Over three days, QCs acting for Britain’s biggest insurers argued a 2009 Act allowing people to sue for asbestos exposure should be struck down.

No high-minded defence of human rights here – this is a defence of commercial profits at the expenses of human rights.

And if we jump across to Scotland on Sunday, we get this little nugget from Eddie Barnes -

UK Ministers have warned Alex Salmond he must seek their support on the wording of his independence referendum or face the possibility of a legal challenge that could end up in the Supreme Court.

Scotland Office Minister David Mundell said a dispute over the crucial wording of the question could end up in the courts, as Unionist supporters would probably challenge it.

It looks like Alex Salmond is going to need what Tom Gordon (above) calls his “street fighting style”. In fact, if the unionists keep this line up, a “street fighting style” may be called for on a wider front than just Holyrood.

Back to the Herald, and on pages 12 and 13, the combatants line up, or rather, they are lined up in the way the Sunday Herald sees as most advantageous to the union case. Tom Gordon has a whole page described as “Analysis”, a label that requires scrutiny in the light of the content.

The first part is effectively an attempt to suggest that Kenny MacAskill’s reputation in the legal profession is threatened by his stated position on the UK Supreme Court. (Kenny Mac Askill also has a street fighting style, and I for one am glad of it – Scotland is going to need it in the years ahead of us.).

There is a very sour grapes reference to the Megrahi release – a belated recognition by the Herald that the best efforts of unionists to besmirch the Justice Secretary’s reputation on that issue had miserably failed, quoting Solicitor Advocate John Scott as saying that

… Salmond and MacAskill had squandered a huge amount of goodwill built up by the SNP government in a remarkably short period of time with their “cheap” personal attacks.

“I think the Megrahi decision played well with the legal profession, as did trying to scrap short-term sentences …”

“ … Uniting the legal profession against them is something that has happened remarkably quickly. The only way to draw a line under it is to apologise.”

Ian Smart, a past president of the Law Society, joins the chorus against Salmond and MacAskill, but revealingly refers to “the micro-politics of the legal profession”.

They don’t look so micro from where I’m sitting …

Later in the Analysis piece, we discover that Ian Smart helped found the Labour Action movement in the 1980s.  Nae politics there, then …

Paul McBride, QC gets a reference and is quoted here (and also gets a few column inches on the next page) as a defender of the First Minister’s position, but is described by Tom Gordon as “an isolated voice.” (He is not, except in the pages of the Herald and in the minds of the unionist opposition in Holyrood.)

Page 13 is headed Legal Opinion, and Colin Boyd, a former Solicitor General for Scotland (1997-2000)  and former Lord Advocate (2000-2006) gets more than three quarters of the column inches. He is now a Labour Life Peer in the House of Lords. Nae politics there, then …

Colin Boyd is very high-minded in his opening statements, as befits an eminent lawyer who has held two of the highest legal offices in Scotland and is now a peer of the realm, the realm being the United Kingdom.

It’s about “the independence of the judiciary and the rule of law”. Aye, so it is …

But it is more than that. It is a debate about our values and the protection of fundamental rights and freedoms.

So it is. It’s about my values as a Scot, and my fundamental rights and freedoms as a Scot, under the law of Scotland, under the Act of Union, and under the Declaration of Arbroath. So far so good, Lord Boyd of Duncansby – ye’ll get nae argument frae me there, so long as whoever you mean by “our” doesn’t refer to some concept of Britishness, or British identity, a concept I don’t subscribe to.

Lord Boyd goes on to say that “Judges are not above criticism and in a free society, the idea that they can be immune from criticism is clearly wrong.”

Wait for the but, as my old boss used to say in negotiations when someone on the other side said something I agreed with – wait for the disjunctive coordinating conjunction.

And the but arrives, right on cue …

But a free society is one underpinned and guaranteed by the rule of law and the independent judiciary. Judges must be able to take decisions free from outside influence.

Well, I agree with that too, as a democrat must. But I have a but too, Lord Boyd. Without wishing to fall into the post hoc, ergo propter hoc fallacy, I ask the following question – why was the UK Supreme Court set up in the first place and who exactly who made the decision to set it up in 2009?

The simple answer to that, which tells us little about the political processes behind the scenes is that The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009.

WHAT THE UK SUPREME COURT SAYS ABOUT ITSELF ON ITS WEBSITE

The Supreme Court is the final court of appeal in the UK for civil cases. It hears appeals in criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

The Court was not set up to be the final court of appeal for criminal cases in Scotland, but it has now used the Human Rights Act to question key judgements of the Scottish High Court, to open cell doors, and to lay the Scottish Government open to huge financial liabilities. And its express right to be the final court of appeal for civil cases in the UK, including Scotland, now looks likely to be significant too, in the light of today’s asbestos report.

There is no UK law, but this sure as hell is beginning to look like it …

But it’s that bit highlighted in red that worries me - It hears cases of the greatest public or constitutional importance affecting the whole population.

What is the referendum on Scottish independence but a question of the greatest public and constitutional importance? And what is the definition of ‘the whole population’ going to be? I define it as the electorate of Scotland, and their absolute right to bring to an end the Union, but ‘the whole population’ in the minds of the Colonial Office – sorry, the Scottish Office, and in the minds of the Colonial Governor – sorry, Secretary of state for Scotland, Michael Moore and his assistant, David Mundel seems to be the population and the electorate of the UK.

Lord Boyd now goes on to a number of very revealing statements. He quotes Brian Taylor, the BBC’s Scottish political editor – “He said it seems probable that Mr. Salmond’s rhetoric will encourage the Supreme Court to be yet more minimalistic in the scope of its involvement in Scottish criminal law”.

Lord Boyd sees this as “the danger” – I see it as the highly desirable outcome, not of “rhetoric”, but of the legitimate call of the First Minister of Scotland, with  a renewed and enhanced mandate from the people of Scotland to the UK to be very careful about how they act in relation to the Scottish legal system and Scots law.

Lord Boyd gives passing reference to Lord McCluskey’s opposition to the incorporation of the European Convention on Human Rights into domestic law, i.e. in my words, UK law – for it is hard to see it as anything else.

Lord Boyd quotes Lord McCluskey’s description of the European Convention on Human Rights as “offering a field day for crackpots, a pain in the neck for judges and legislators, and a gold mine for lawyers.”

Gaun yersel, Lord McCluskey! Alex Salmond now faces a threat of legal action for saying much the same thing about gold mines and lawyers.

Lord Boyd then goes on to say many things about the Scottish legal system, and its role in preserving Scottish identity “during nearly three centuries of Union with England.” Of course, I applaud that, although I thought it was just over three centuries, but I bow to Lord Boyd's superior knowledge of these things.

But he then goes on to the now familiar unionist argument that Strasbourg is overburdened and the UK Supreme Court is simply helping them out to speed up the justice system.  I think I may safely describe this as a unionist argument, although Lord Boyd clearly advances it as a legal argument, and of course can maintain an absolute distinction between the political and the legal arguments. (Lord Boyd sits as a Labour peer in the House of Lords and Labour is a unionist party.)

Lord Boyd closes his Herald piece by saying that “It matters not whether one believes in an independent Scotland or Scotland within a Union”.

Oh, aye, it does, Lord Boyd – it matters to me, because I believe in an independent Scotland, and I would have thought it matters to you, as a Labour Lord and a member of a Unionist political party. I don’t think the great debate will be served by claims from either camp that they are heroically objective about these fundamental constitutional issues. And I believe, as I hope you believe, that it is harmful to the very ideals and values you and I do share to obscure this stark political reality.

You say “This debate is about who we are and what we stand for.” I agree – but we must be clear about that ‘we’, and whether it is we, the Scottish people in favour of independence, or we, the Scottish people who favour the Union, or we, the population of the UK, who may well have even more complex and contradictory stances on the matter.

I am a Scot and I stand for the independence of Scotland, and the elected Scottish Government’s right to put that fundamental choice to the Scottish electorate without interference from the UK in any of its many manifestations, from Westminster to the Supreme Court.

You ask three other fundamental question, Lord Boyd -

Do we aspire to be a society which is governed by the rule of law, upholding fundamental rights and freedoms?

Are we prepared to test our laws against international standards and conventions?

Do we respect the independence of the judiciary in upholding the rule of law and protecting our rights and freedoms?

To all three, I answer Yes, as a Scot, under Scottish and European law and the International Convention on Human Rights, as represented by the European Court of Human Rights in Strasbourg. The judiciary I respect  is the Scottish Judiciary, operating under the law of Scotland, and the European judiciary in Strasbourg.

I did not wish the UK Supreme Court to be set up, but while it exists as a reality so long as the UK exists, I will respect its rulings, but feel entirely free to question their relevance, validity, and their wisdom.

If I feel as a citizen, that the UK Supreme Court is being politicised by those attempting to preserve the Union and the UK at all costs, I will defend its right to resist such an insidious process. If it seems to be yielding to such political pressures, I will not respect its independence, nor will I respect the judiciary who are part of such a perversion of The Act of Union and of democracy.