‘If I cannot live as a free
woman, it is better to die
as a hero’
John Cameron
Justice for the pilots
The tourist spot
where they won’t
even serve a cup of tea
The Midgie
The two Tom Watsons
The Midgie
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Royston, Glasgow
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Today’s banner
Choppy waters, Oban
by Islay McLeod
I was wrong.
It’s personal,
and very, very nasty
Rings of truth: part 3
Kenneth Roy
I got it wrong. In this place yesterday, I said that the Scottish ministers were hostile to the jurisdiction being exercised in human rights appeals by a court based in London, but that I was sure it was nothing personal. It is necessary to make an unqualified retraction of this naive suggestion. It is indeed personal – highly personal – and very, very nasty.
At the end of an interview on Newsnight Scotland (BBC2) on Tuesday, when it was too late for the accomplished Isabel Fraser to question it, the first minister made the following statement:
In the most recent case of Nat Fraser, one Scottish judge gave an opinion. I don’t think it’s sensible, fair, reasonable in any jurisdiction to have a situation where one judge is over-ruling the opinions of many judges in another court. It’s all very well to criticise judges in the Court of Session. Why not criticise the situation which boils down to the potential replacement of Scottish law with Lord Hope’s law? I don’t think that’s a satisfactory situation.
If this message was repeated in one form or another, day after day, and went unchallenged as it was on television two nights ago through no fault of the interviewer, one could imagine it playing effectively to that sense of Scottish grievance which is never far from the surface of our national life. Note the use of such words as ‘fair’ and ‘reasonable’ – expressed by Mr Salmond in that agreeable, bloke-next-door way of his, interspersed on this occasion with frequent references to the interviewer’s first name.
The impression is a powerful one. Here is a first minister who is standing up for Scotland, defending the interests of Scottish justice, championing our right to judicial self-determination free from the interference of ‘another country’ (as he described the UK – or was it England he had in mind?). It’s masterly, it’s beguiling, it’s plausible and it’s probably on too late to frighten the children. The situation described by Mr Salmond is indeed enough to make a Scotsperson’s blood boil – assuming it isn’t at boiling point already.
But wait. To borrow the first minister’s own words, is his statement fair or reasonable? It is worth deconstructing it to find out.
In the most recent case of Nat Fraser, one Scottish judge gave an opinion.
Presumably the judge to whom Alex Salmond refers is Lord Hope. But even this opening sentence isn’t quite accurate. Lord Hope gave an opinion. But so did another Scottish judge, Lord Rodger, who agreed with Lord Hope that the failure of the Crown to disclose a vital piece of evidence was a breach of the accused’s human rights. So, not one Scottish judge. Two.
I don’t think it’s sensible, fair, reasonable in any jurisdiction to have a situation where one judge is over-ruling the opinions of many judges in another court.
Again there is the incriminating suggestion that Lord Hope is alone and unsupported. But in this part of the statement the first minister goes further: he suggests that this one judge, the lone wolf of the UK Supreme Court, is vastly outnumbered by a majority elsewhere.
The facts are these. Not one judge but five judges in the UK Supreme Court held unanimously that the appellant’s right to a fair trial had been breached. Not one judge but five judges in the UK Supreme Court held unanimously that the conviction should be quashed. As for the ‘many judges in another court’ – one supposes Mr Salmond is referring here to the Criminal Appeal Court in Edinburgh – they were three in number: Lord Gill (lord justice clerk), Lord Osborne and the late Lord Johnston.
To summarise: five judges in the UK Supreme Court over-ruled the judgement of three judges in the Criminal Appeal Court.
Why not criticise the situation which boils down to the potential replacement of Scottish law with Lord Hope’s law?
Now, I don’t think I’ve come across the like of that before. A line has been crossed. The first minister of Scotland has just implied that our most eminent judge is not working within the framework of Scots law but has invented his own. We are indeed in ‘another country’, but it’s not called the UK; it’s a deep, jungle-like terrain of political ethics. It’s a wild, dangerous place. It’s uncharted territory.
When I was a young journalist reporting and occasionally commenting on the work of the higher criminal courts in Scotland, I was introduced to a concept that I found terrifying. I was taught that it was never a good idea to impugn the integrity of a judge; that such recklessness could land you in huge trouble. There was even a name for this offence. It was called ‘murmuring a judge’. I was more impatient about the many inhibitions on the freedom of the press than I am now, but even then I could see that respect for the law, and for the people with the immense responsibility and privilege of administering it, is an essential part of a civilised society and that without it we would be finished; all washed-up.
At the highest level that respect seems to have gone in a week. We have Alex Salmond talking about Hope’s law. We have his justice secretary allegedly telling a newspaper that the knowledge of Scots law of the two Scottish judges in the Supreme Court (one of whom, Lord Rodger, is very seriously ill) ‘is limited to a visit to the Edinburgh Festival’. What was I worrying about all those years? Why did I endure sleepless nights wondering if I had murmured a judge? Anything goes now. Anything.
I began this series of pieces by asking how Nat Fraser could ever receive a fair trial. Three days later, the question has knobs on. But other questions now present themselves. Do we live in a political culture in which judges are fair game for political attack? If a judicial decision isn’t fancied by the politicians, are the rules simply changed to have the offending judge removed? But, beyond that, what is to be the nature of public discourse in Scotland? What is our language to be?
Click here for Rings of truth: part 1
Click here for Rings of truth: part 2
