Thursday, 16 June 2011

In Defence of the Rule of Law

Turns out I’m famous. Apparently Eck mentioned me in Parliament today as one of the people who supports him on being opposed to the encroachment of the Supreme Court into Scots criminal law. And that’s true, up to a point.

I always knew that my blog had just the one follower but I never guessed it would turn out to be the First Minister.

The point he misses however is this. There was a time that the SNP was significantly hampered by the manner in which they pursued their own case. Anyone is entitled to believe in Scottish Independence, it always has been a perfectly legitimate aim. But many, too many, in the SNP in the past advanced their argument in language that had no place in a civilised discourse. Not only was Scotland a nation with an entitlement to self determination (which it is, if it wants) but once that  independence had been achieved, they asserted that it would prove to be one particularly blessed in the world:  with citizenry of unique wisdom and sagacity; unparalleled natural beauty and indigenous resource, and a special place in the affections of the Almighty. And the weather would be better as well. And anybody who disagreed with that was a traitor.

The actual people of Scotland didn’t like or believe that. So they didn’t vote SNP.

One of the great achievements of Salmond’s stewardship of the SNP has been to change that rhetoric and, having done that, albeit thanks in no small part to the incompetence of my own Party, electoral success has followed.

Many, and I include myself in this, believed that this might be a genuine change in attitude. That we did indeed have to come to terms with the fact that there was now another social-democratic party in Scotland and that the only real difference between us was a genuine disagreement as to the best constitutional future for Scotland. A sort of left wing version of the politics of the Republic of Ireland.

It was against that background that I was genuinely shocked with the terms of the First Minister’s Holyrood interview. 

To be honest, had I not been assured that the interview took place in the morning, I might have suspected that he’d been drinking. It reads like Nigel Farage crossed with Mel Gibson with a Scottish version of Al Murray, the pub landlord mixed in. “.............and another thing...............what about that Tony Kelly”. 

(I made that last quote up but I didn’t make up the quote “When the Human Rights Act was stuck into the Scotland Act....”  Stuck into! Or indeed his claim that his, hand picked, committee, eminent though they are, are in his opinion “of more prestige than Lord Hope” a judgement in which, even if he was qualified to make it, would be undermined by the fact that he is hardly an )

His remarks are not a reasoned defence of Scottish legal and constitutional particularism, with which, I once again emphasise, I personally sympathise; it is a rant, and an arrogant rant at that.  At the risk of a mixed metaphor, the mask has slipped and we have learned that what has changed is not the nationalist product but simply its marketing. Despite its personalised nature, it is not an attack on Lord Hope, or even indeed the unlikely duo of Lord Hope and Tony Kelly, it is an attack on the very rule of law itself and of the necessity in a democracy of politicians being constrained in their actions by an independent legal system and an independent judiciary.  It proceeds on the assumption that while such safeguards might be necessary in every other civilised society, they are superfluous to requirements in a perfect country like Scotland.

When the Judicial Committee of the Privy Council (effectively the Supreme Court under a previous title), first adjudicated on a Scottish Criminal Appeal brought on ECHR grounds, the Court itself expressed some doubt as to its jurisdiction. That issue was only conclusively closed off when the Crown appealed a decision it didn’t like in Scotland to the Judicial Committee. And the SNP said nothing, nothing at all, not because they were short of lawyers in their upper ranks and thus ignorant of what was happening, but rather because they agreed with the ultimate result. That has, I believe, led to a slippage in which we are in danger of creating a routine second  level of appeal in criminal cases but there is a widespread recognition of the need to sort that out and indeed Jim Wallace has published proposals to do just that.

The real issue here is however a much more sinister one. In his acceptance speech after the recent election the First Minister spoke of the SNP having a monopoly of power but not a monopoly of wisdom. That is not the tone of his Holyrood interview and in light of its contents  there will be more than me grateful that thanks to our continued membership of the United Kingdom; of  the European Union (another membership I note some of Mr Salmond’s back benchers, at least, have started to publicly question)and of the ECHR,  Mr Salmond does not truly have a monopoly of power either.

I finish by a few words of appreciation for Lord Hope. I don’t always agree with him but he is one of Scotland’s greatest post war judges and a distinguished member of our highest court, while I am just a wee legal aid lawyer from Cumbernauld....... so I’m sure he can live with my dissent.  Let’s not forget however that Mr Salmond is just somebody who thanks to the ineptitude of his opponents has won one election. If he carries on like this I am confident he won’t do so again. And I’m sure Lord Hope can live with his dissent as well in the meantime.

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