Judicious language

A front page newspaper story today might be a good illustration of the practical potential for recent legislation from the Scottish Parliament.

Sheriff Richard Davidson's comments, reported in the Scotsman, compared a mother defying court orders to permit supervised contact for her ex-partner with their child, to the lawlessness in Zimbabwe under Robert Mugabe - the message being that anarchy would result if such behaviour came to be thought acceptable.

An extreme comparison, one might think, and if true, one quite likely to prove counterproductive in fostering respect for the law and the legal process. But how should we deal with it if, unlike the Mugabe regime in Zimbabwe, we prize the independence of our judges, and those politicians and media commentators who from time to time stray beyond the bounds of reasoned criticism are also likely to find themselves under the spotlight?

This sort of situation may be just the sort of thing that the Judiciary and Courts (Scotland) Act, passed by the Holyrood Parliament last year, may be capable of dealing with (in future cases at least, because I don't think the relevant provisions are in force yet). The Act, which incidentally also restates the longstanding principle of judicial independence, provides for the Lord President to lay down rules for a scheme to deal with complaints about judicial conduct.

Up until now the only formal sanction available has been the ultimate one of setting out to establish that a judge is no longer fit to hold office, not something that would be invoked over a single outburst. And even if there has been a practice of senior judges having a private word with a colleague who has behaved improperly in some way, or in more serious cases bringing pressure to bear to resign, that is not the sort of transparency expected in relation to public officials these days.

So a complaints process in which litigants, or indeed lawyers, can ask for an impartial ruling on whether a particular incident reflects expected standards of judicial conduct, and receive a proper determination, should indeed serve a purpose, particularly if it enables the true facts to be established. Despite certain fears expressed before the Act was passed, it should ultimately prove affirming of our judges rather than undermining them, if judges know that their public utterances should be kept within proper bounds and the public know they have some means of recourse if not.