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If lawyers want an independent judiciary
it's time they fought for one
Magnus Linklater
Columnist, Scotland on Sunday
Filed 09 Oct 06
©Magnus Linklater
This article, which was originally
published in the Opinion section of
Scotland on Sunday on 8th October2006, is reproduced on Land-Care
with the kind permission of the author and the newspaper
THE Scots have been arguing about the independence of
their judicial system for the best part of 500 years. Until the
17th century, it was virtually a closed shop, since the top job
always went to a Campbell - the Earls of Argyll traditionally inherited
the post of Lord Justice General, running the courts and choosing
the judges as a matter of right. Even the Argylls, however, could
not hold a candle to the Earls of Stair, who were political power-brokers
as well as senior judges, or the Dundas dynasty, which carved up
the posts of Lord Advocate and Solicitor-General between them for
three generations, controlling the Scottish legal system and using
it as an instrument to advance the political interests of the family
and the government of the day.
So when we hear Scottish judges working
themselves into a fine lather about the way the Executive is allegedly
undermining their independence, we should perhaps put it into context.They
weren't always so pernickety.
That said, the sudden and unexpected resignation
of the Lord Advocate, the swift appointment of a successor who comes
from the ranks of the civil service, and a Solicitor General, who
is a long-time member of the Labour Party, is enough to give one
pause for thought. We have to accept that Colin Boyd QC, now Lord
Boyd of Duncansby, has decided to step down simply because he feels
he has been Lord Advocate for long enough, and wants to devote himself
to the House of Lords and private practice. He is the longest-serving
Lord Advocate of recent times, the job is enormously demanding and
he has not always enjoyed the best of health. But the timing of
his departure is puzzling.
Next month, the Justice Committee of the
Scottish Parliament will report on the vexed issue of Shirley McKie,
the former policewoman who was accused of leaving her fingerprints
at a murder scene. Whatever its conclusions, the role of the Lord
Advocate will be central to it. His decision to prosecute McKie,
her acquittal, and his subsequent refusal to hold a public inquiry,
have combined to make this a highly political case, throwing a spotlight
on the anomaly that is the constitutional position of the Lord Advocate.
He may well emerge unchallenged from the Committee's report. But
by standing down now, he has made it seem as if he is dodging the
flak.
And he goes just as the whole issue of judicial
independence is coming to a head. Ever since devolution, which seemed,
on the surface at least, to entrench the independence of the Scottish
legal system, there have been complaints that ministers have been
steadily extending their control over the judicial process. The
Lord Advocate, who combines the roles of heading the prosecution
service in Scotland, but also sits in the Cabinet and advises the
Executive on legal matters, has rarely been seen as an outspoken
and public champion of legal autonomy. Sitting as he does on the
Labour benches in Parliament every week he appears, on the contrary,
as the embodiment of government policy. Yet that policy is under
attack from some very senior judges.
There are few more respected legal names
in Scotland than those of Lord Mackay of Clashfern, Lord McCluskey,
Lord Cullen and Professor Sir David Edward QC. A former Lord Chancellor,
a former Solicitor-General, a former Lord President and a former
judge at the European Court of Justice, they bring an intellectual
weight and a range of experience to the debate that no minister
can match. Each in their different ways has criticised the role
of the Lord Advocate and the reforms that have been introduced by
the Executive to modernise the judicial system. In the name of openness,
accountability and modernisation, they say, it has begun to undermine
and even threaten the cherished principle of robust independence
that should be at the heart of the legal profession. Lord McCluskey
puts it most trenchantly when he says: "Judicial independence
is not the slogan of a judges' trades union; it is one of the central
pillars of democracy." Lord Cullen, who argues that ministers
simply do not understand the principle of independence, says: "Judges
are not employees, and are not subject to the directions of employees
senior to them." And Sir David Edward has dismissed one of
the Executive's proposed reforms as "a slavish imitation of
English innovations".
The Lord Advocate's position is only one
of their complaints. Lord McCluskey is far more exercised about
the way the Lord President, the most senor legal appointment in
Scotland, is chosen by a government-appointed panel, which interviews
prospective candidates "as if they were schoolchildren applying
for elevation to the rank of prefect". Both he and Lord Cullen
have been deeply worried about proposals to unify judges and sheriffs
into a single organisation headed by a Lord President with enhanced
powers, because they believe it means that this makes it easier
for the Executive to control. They claim that the ability to appoint
and possibly dismiss judges has begun to pass to ministers rather
than remaining the preserve of the judiciary, leading, as McCluskey
puts it, to a process that "makes one think of Zimbabwe".
Both Edward, McCluskey and indeed the Law Society of Scotland are
appalled at the new Legal Profession and Legal Aid Bill, which proposes
setting up a complaints commission to handle claims against lawyers;
again, they argue, this means that political control of judicial
matters passes to the politicians, because the Executive will have
the final say in appointing the commission's members.
It is certainly bizarre that the First Minister,
who wants to make judicial appointments more accountable, should
have promoted a new Lord Advocate and a Solicitor General with no
more consultation than an afternoon's vote in Parliament. And almost
all the Executive's critics are united in believing that the Lord
Advocate should not be sitting in the Cabinet. If Elish Angiolini,
who has succeeded Lord Boyd, were to come out and say that she wanted
to distance herself from the Executive by ending that tradition,
that would draw much of the sting of the complaints. But this is
about rather more than her position. For once, Scotland finds itself
behind England in standing up for the independence of its legal
system. Successive Lord Chief Justices in England have been robust
in defending judges against the hostile criticisms of Tony Blair
and successive home secretaries. The new Supreme Court in London,
far from undermining that independence, will actually reinforce
it. The Attorney General in England does not sit in the Cabinet.
Nor does he head the prosecution service.
No serving law officer in Scotland has spoken
up forcibly on these matters. Successive Lord Presidents, including
Lord Cullen, have kept silent while in office. It has been left
to retired judges to make the running. As a result the Executive,
in the name of modernisation, has succeeded in setting the agenda.
And that agenda is being pushed through without much opposition.
Perhaps the time has come to find a latter-day Stair, Argyll or
Dundas to swing the balance back to the lawyers. There are high
principles at stake here. And those principles are worth defending.
©Magnus Linklater
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