Judges and politicians

I had not intended to return to the subject of appeals to the Supreme Court for a second week. But the comments from the Scottish Government this past week have been so extraordinary and unprecedented that they cannot pass unchallenged.

We have gone beyond the question of whether the UK Supreme Court is a proper forum for hearing human rights issues arising in Scots criminal appeals, though that debate of course continues to run. (Not with any more enlightenment on the part of the First Minister, who seems to be willing for the situation to come about that Scots law would be found wanting by the European Court of Human Rights, but that the unfortunate prisoner who won a case there would remain locked up - surely the worst of both worlds.)

No, the further issue now opened up is the relations between politicians and the judiciary, and the proper boundaries of comment by the former on the latter. And it doesn't even stop at comment, because our Justice Secretary wants to curtail the Scottish Government's contribution to Supreme Court funding.

One can understand the SNP Government's desire to protest at perceived unwelcome interference in Scottish affairs from furth of the country, and especially from London. But to threaten tangible sanctions against a court whose decisions one happens not to like is something I would not have expected to see happen except in places like Zimbabwe.

Indeed I recall it being said (by a distinguished guest Zimbabwean lawyer) when our Law Society held a special conference on the independence of the profession, that such regimes watch what happens in countries like ours for anything they can use to justify action to counter dissent in their own territory. Is this the example Scotland wants to show to the rest of the world?

Even without that, comments about "ambulance-chasing courts", or judges whose knowledge of Scots law is limited to a trip to the Edinburgh Festival, would be laughable if they were not so serious. What respect can our political leaders expect the rest of the country to show for the rule of law when they so blatantly challenge its authority? And if the people follow their lead, will they not be the first both to feel the consequences and to point the finger at supposed ills elsewhere in society?

I have not been much in the habit of directly criticising individual politicians in these blogs, as I usually try and highlight any underlying principles that I think are at stake in the topics covered. But here the issues strike at the heart of our democracy, and I suggest that those who respect the rule of law and the checks and balances that are meant to preserve the delicate balance of powers within our constitution, need to speak out with one voice. Indeed I believe I have not yet heard any lawyers outwith the Scottish Government who are willing to speak up in support of their comments: perhaps an indication that our shared core professional values do indeed remain strong.

One final thought. There was an appeal being heard in the Court of Session this week by, if I recall, the companies challenging the legislative competence of the tobacco display ban enacted by the Scottish Parliament, a Government measure. Should the appeal succeed, would ministers wish to take a further appeal to the Supreme Court? To the very judges whose knowledge and ability, indeed legitimacy, they have so rudely challenged? I could almost wish for them to be placed in the situation of having to decide.