Independent no more?

Despite what you may hear from judges and sheriffs, I DO hold a law degree. In fact I hold one of the first degrees granted by Glasgow University in Public Law – a study of the interaction of law and politics.

Our studies examined how a state has to be structured to ensure that the three arms of government – legislative, executive and judicial – can function in the interests of the citizens, the ultimate holders of democratic power. My reading of law nowadays is pretty much confined to the thoughts of the American Revolutionary lawyers on the balances to be struck between these three to produce a responsible and responsive system of governmental rule.

Applying what I have gleaned from the writings of the acknowledged authorities on these matters to post-devolution Scotland, I find a system in operation which is plainly not fit for purpose. The most glaring fault is the post-devolution operation of the Crown. It is crucial to a proper system that the Law Officers are independent legal advisers to the executive. In the exercise of their function as prosecutors, they must make their decisions purely on the grounds of law and public interest – politics must never be any part of this process. But is this so today? I cannot believe that it is.

Perhaps the most glaring example of the Crown appearing to be motivated by "political" considerations is found in their contrasting approaches to the Tommy Sheridan perjury case and the Royal Bank of Scotland's nearly successful attempt to bankrupt the whole of the UK. As a Scottish company the Royal Bank falls within the area of responsibility of the Lord Advocate in respect of matters criminal. I spend about three months of every year in America now, and can assure you that there, state and federal prosecutors would have many scores of RBS folk in the dock of the criminal courts – as they have done with the US bank bosses who acted in the same way in the States. Indeed the American approach would be followed in most democracies. But in Scotland, nothing happens in the wake of the biggest corporate calamity in our history.

In contrast, when a minor political figure dares to win a defamation action by convincing a jury that the News of the World is untruthful, that is a matter on which the Lord Advocate expends over £1 million of our tax money. The spectacle of News of the World hacks running up and down to Crown Office to assist in the perjury case against Sheridan, in post-Leveson retrospect, must be one of the most disreputable incidents in the history of the Scots prosecution system. Can any reasonable observer look at the Scots Crown’s pursuit of Sheridan – in effect on behalf of the Murdoch tabloid – and their inaction over the Royal Bank, and come to the view that this is prosecution in the public interest?

The closeness of some senior Scots politicians to Murdoch’s News International is an open secret. While perjury goes unpunished on a daily basis in Scotland, one is entitled to wonder at the decision to prosecute Sheridan. Why single out for special treatment such an unimportant civil case concerning nothing more vital than who was shagging whom?

I think that it is not going too far to see the Crown’s action on Sheridan and inaction on the Royal Bank as symptomatic of a fundamental defect in the devolutionary setup – namely that the Crown has been subsumed into the executive, and so has become political. That state of affairs would have made the Scottish justice system unfit for 18th century democracy, never mind a modern one.

The legal profession is well aware of question marks over the holders of some of the “offices of state” in the current Scots governmental setup. Many senior and experienced lawyers are convinced that the First Minister’s power of nomination of the Law Officers has been used to secure the appointment of those who are likely to do the bidding of the party politicians. So too the party political approach of the current Justice Minister has shown complete inability to understand the constitutional requirements of that post. The ignorant ravings of Mr MacAskill over the Supreme Court’s patently correct decisions in Cadder and Nat Fraser has done huge damage to the credibility of Scots justice.

Nor has the Scottish Parliament been able to understand that one of its prime functions is to hold the executive to account. This vital task is simply not a part of what happens at Holyrood. One hopes that the SNP appointment of SNP conveners to all parliamentary committees is a product of ignorance, rather than designed to ensure that the Parliament fails to carry out this vital part of its remit.

Back in 1974 at Glasgow University, my essay on Scotland would have said “fundamentally flawed”. But sadly this isn’t an academic exercise. This is the constitutional system we live under. Surely the land of Hume, whose writings were important in the American creation of democracy, deserves better than this?