A famous well known retirned Judge returning to the trenches once again to attack any prospect of reform to the Judiciary & legal profession ? Whatever next in the saga of Scottish Law reporting ?
No big surprises as Lord McCluskey, formerly of the Court of Session and now on a shifting remit between London & Edinburgh whenever it suits, comes out fighting and condemns anyone who dare suggest reforming the judiciary or the legal profession.
Granting public platforms to those who prefer the days of old and prefer to keep us all that way isn't getting the public onboard for a cause which is dragging both the bench and the legal profession as a whole into the lowest ranks of public opinion ... but for those of you interested in the machinations of Lord McCluskey's 'ideal world', read on.
Let's hope Lord McCluskey doesn't jump ship yet again and join the reformers .. he might get a bigger audience.
Which button was it they used to press on ex Soviet Union Communist Party General Secretary Konstantin Chernyenko to get a response ? red or green ? I forget ... answers on a postcard please ...
Democracy needs us all to monitor each other better
LORD McCLUSKEY
IN HIS powerful article in The Scotsman last Monday, Professor Robert Black borrowed a phrase from one of Scotland's greatest judges. Speaking of the received notion that judges never make new law, the late Lord Reid said: "We don't believe in fairytales any more." Black suggests we should examine sceptically another possible myth that all lawyers were brought up to believe: is the celebrated independence of the Lord Advocate in criminal justice a fairytale? I should like to go further back and ask if it really matters. The answer, without doubt, is that it does. Why?
Democracy is greatly prized. However, many of us, here and abroad, make the error of supposing that democracy is really just about having fair elections at reasonable intervals so that our rulers may be called to account, kept in their place. Important though elections are, true democracy rests upon a number of essential pillars, including a free press, strong trade unions that aren't puppets of the state, an independent judiciary and many other nongovernmental organisations (NGOs) that constitute "Civil Society".
Thus taking the example of Russia, we observe that its retreat from democracy is marked by the Kremlin's dominance of the media, a subservient judiciary that is neither strong nor independent, the absence of a members-based trade-union movement and close, restrictive control of NGOs by the state. But Russia exhibits another anti-democratic feature of which many people are hardly aware: a state-controlled prosecution service, supported by the notorious, now renamed, taxes police.
This serves to remind us that a less appreciated pillar of true democracy is the existence of a prosecution service that takes vital decisions about whom to prosecute - or not - without orders from the political power; and that an independent prosecution service cannot operate democratically without the backing of a police force that investigates impartially.
We have had the recent example of an exhaustive police investigation of the "Cash for Honours" allegations. Few imagine the police pulled their punches just because their detective work led to the heart of government. Nor do informed and impartial observers suggest the Crown Prosecution Service's decision was undermined by political orders. So, while it is foolish to imagine perfection can be achieved in the operation of such bodies, we can be reasonably satisfied that our criminal authorities adhere well to the tradition of taking an impartial approach to criminal justice.
That said, we cannot ignore the fact that, as with many constitutional essentials, the independence of those in charge of criminal justice rests upon undefined conventions that evolved over centuries but, despite that, can be changed quickly, surreptitiously and without legislation.
Many close to the administration of justice fear that this is happening to the public prosecution service in Scotland, especially because of the diminished role and status of the Lord Advocate, traditionally the embodiment of a robustly independent approach to criminal prosecution.
The independence of the Lord Advocate as public prosecutor has always been treated as the cornerstone of criminal justice in Scotland. Countless decisions of the High Court of Justiciary have rested upon the unchallengeable understanding that the Lord Advocate can be relied upon to act invariably as an impartial minister of justice.
That axiom rested upon a number of unspoken assumptions, based on experience. For example, the Lord Advocate was invariably one of a small number of lawyers who, as members of the Faculty of Advocates, shared an extremely powerful tradition of independence. Many, including HP Macmillan, Ian Shearer and James Mackay, were not members of any political party when appointed Lord Advocate. The faculty was small but its traditions were extraordinary. It has recently produced, among others: the leaders of the Labour party, John Smith, and of the Liberal Democrats, Sir Menzies Campbell; a Foreign Secretary, Sir Malcolm Rifkind; a Lord Chancellor, Lord Mackay of Clashfern; a Chancellor of the Exchequer, Alistair Darling; the Defence Secretary, Des Browne; and several of the finest judges that the United Kingdom has ever had, including Lords Reid and Kilbrandon. The whole tradition of daily practice at the Scottish Bar was of total independence from political pressure: every advocate had to cast aside his personal views and prejudices and present his client's case publicly in open court. Each advocate was self-employed, none submitting to the dictates of an employer.
One other thing. Because faculty membership was small, everybody knew the strengths and weaknesses of the others: the ethics of each were transparent to all. The Lord Advocate and Crown Office were located in Parliament House, and knew judges and advocates well. Cosy, introverted, perhaps even slightly incestuous, outsiders might think, but a perfect environment for talent to flourish and weaknesses to be exposed. Judges knew how far they could trust a Lord Advocate and his deputes.
That context has changed. The change began - unremarked - in 1982, when the Law Officers and the Crown Office quit Parliament House. They gained more office space but lost daily contact with the living ethos of the Scottish system of justice: the bunker mentality inevitably followed later.
After 1999, the Lord Advocate moved much closer to political ministers and rarely ventured into Parliament House. The Advocate-deputes came to include many, recruited from the Fiscal service, with no experience of the environment in which that ethos grew. Even the law officers are no longer experienced advocates immersed in the traditions of the High Court. They too are recruited from the middle ranks of a salaried prosecution service, though paid significantly less than the permanent civil servants who dominate the Executive's approach to the legal system
I make no criticism of the present Law Officers; but, regardless of their personal qualities, they lack the cultural infrastructure from which to assert independence against powerful politicians. They have no security of tenure and can readily be replaced by other salaried public servants. If the Lord Advocate were to be removed, it would hardly cause a constitutional crisis, though it could cause personal problems for the unemployed lawyer. The foundation of the Lord Advocate's independence has been undermined. Constitutional independence is not just a personal virtue.
Imagine the scenario if a powerful First Minister concluded that, for political reasons - for example, to avoid possible prejudice to community relations - a terrorist case should not be prosecuted in Scotland where the offence was perpetrated but immediately transferred to England for prosecution there. Would the Lord Advocate, sitting in a Cabinet committee with the First Minister, firmly tell him such decisions were for the Lord Advocate, not the First Minister? It is premature to enquire into what truly happened when, only three days after the alleged terrorist incident at Glasgow airport, the Lord Advocate announced those arrested were being transferred to England to be dealt with there. But this extraordinary procedure raises extremely important questions.
Preserving our democracy demands that, when the time comes, those questions be answered. Let us hope that MSPs know how to ask them.
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