The villain who has been going around saying that an independent Scottish judiciary is a terrible idea has yet to be identified. This is a pity. If the miscreant would only step forward and own up we would all be spared a lot of ponderous chatter and the Lord Justice General, Lord Hamilton, could get a good night's sleep.
Am I still allowed to say that? It's no longer quite clear. If I read correctly the rebuke delivered by Scotland's leading judge to Elish Angiolini, the Lord Advocate, I could be accused of a lack of respect. That is, apparently, but one step away from undermining our entire legal system. And here was I happily mistaking myself for a dedicated supporter of judicial independence.
I don't know of anyone prepared to advance any other view. In this country the sanctity of the rule of law is less a constitutional argument than a fact of life. It is taken for granted. Judges sometimes slap down politicians - and, in Scotland, shape the law in ways never imagined by legislators - but vengeful politicians do not bend the courts to their will.
Lord Hamilton appears to fear the possibility, however. For him, the unhappy aftermath of the World's End trial seems to have become an opportunity to draw a line in the sand. Though adverse comment was directed at both the Crown and Lord Clarke, the judge, the Lord Advocate's decision to make a statement to parliament has encouraged the Lord Justice General to get some things off his chest, and widen the debate.
All well and good. The fact that Lord Hamilton's written intervention is "unprecedented" is, meanwhile, of no account. Fortunately, there's a first time for everything. Equally, you probably cannot reassert the independence of the judiciary often enough, even if its independence is not, in fact, under attack. But if the Lord Justice General merely wished to worry the commonality, he may have done a better job than he realises, though not for the reasons he hoped.
What's at issue? Proceedings whose conclusion was satisfactory only to the accused. Lord Clarke decided that the Crown's evidence was insufficient and ruled that there was no case to answer. Elish Angiolini, as a law officer answerable to parliament, made a statement at Holyrood in which she reaffirmed her confidence in both the evidence and the prosecution. Questioned, she replied that, had she been able, she would have lodged an appeal against the judge's ruling.
The Lord Advocate was at pains to stress that in no sense was she attacking Lord Clarke personally. She was disagreeing with him. In an adversarial system, disagreements are inevitable. So why Lord Hamilton's rebuke? Because she had doubted that the judge's word was the last word in the matter? No. In that, Ms Angiolini was specific. Or was it because she spoke (Lord Hamilton's words) in a "public and political forum"?
If that was "inappropriate", consider the alternatives.
Logically, the Lord Justice General allows only a couple. The chief law officer and head of the prosecution service should have raised the matter privately, it seems, or she should have said nothing. After all, an "open challenge to the correctness of a final decision does not afford the requisite respect".
Lord Hamilton's letter rested heavily on that last word. But how would the Lord Advocate's silence have served to demonstrate respect for the public? How would private discussions in the old style have helped to answer serious public concerns? And what does any of this have to do with the independence of the judiciary?
It is a simple point, but a point Lord Hamilton did not care to address. A challenge to a judge's thinking in a single case is in no sense a challenge to the concept of judicial independence. If the Lord Justice General believes otherwise he is indulging a taste for melodrama. He should - I'm not entirely joking - instruct himself just to ignore the quibbles of parliament and the media.
His argument reaches a little deeper, however. In eliminating the right of the Lord Advocate to deliver a statement, and in disregarding the right of politicians and public to comment or criticise, he is offering the narrowest possible definition of judicial independence. He is arguing, in effect, that independence is what judges say it is. If we take his word - and he says we must - no-one else is relevant. Good enough?
Charitably, you could call it the purest possible statement of the doctrine of the separation of powers. You could, but I won't. For one thing, the Lord Justice General (and, presumably, his fellow judges) appears to think that the quality, or otherwise, of justice is not a public matter. For another, it is a fantasy to imagine that judicial affairs have never touched on the public realm. Judges are of this world.
According to Lord Hamilton's letter, such judges cannot enter a public debate. They can, however, say plenty in open court, and they do, particularly when criticising the Crown for perceived failures. "They have no voice in parliament," the Lord Justice General wrote. But wasn't that the idea? Isn't it part and parcel of the independence he is defending?
Our leading judge demands "reticence", nevertheless. Yet if a judge remains silent, and if the Lord Advocate remains silent, parliament is silenced. The public are, meanwhile, denied the opportunity to understand, far less to debate, "controversial and sensitive" cases. Is Lord Hamilton really saying it is none of our business? Who, then, does he serve? If his answer is "the law" then the response must be that the law is no mere abstraction.
This "unprecedented" controversy has one practical implication for government. The Scottish Tories, to their credit, have been going on about it for a while.
Why is the government's chief legal adviser, namely the Lord Advocate, also head of the prosecution service? No party has accused Ms Angiolini of confusing politics with law. In terms of cabinet government, in fact, the SNP administration has chosen to keep her at arm's length. But her dual role is a bad idea, for all that.
Put it this way: there is the appearance of a potential for a conflict of interest, and even the appearance is worth avoiding. Legal process - Lord Hamilton is sound on the theory - should be kept as far away from politics as possible. If that's the case, the role of the Lord Advocate needs to be redefined.
It would not solve the Lord Justice General's problem, of course. In one sense, in fact, Lord Hamilton (murmur it) is the problem. Nowhere in his letter does he explain how the public interest can be served by his ice-pure definition of judicial independence. When controversy explodes, when there is genuine concern among the people the legal system is supposed to serve, a demand for reticence and respect isn't quite adequate. Too many questions are left unasked and unanswered.
These are old problems, no doubt. How would Lord Hamilton reconcile judicial independence with free political expression, for example? How would he tackle the belief that sometimes the public, taken as a whole, might wish to claim redress from the judiciary? It is one thing to abhor the mob (or the hack), but another to treat the people as a mob.
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