BY IAN MITCHELL
The rule of law is at risk in Scotland today as there is a political wind blowing which is not friendly to a reciprocal relationship between the rulers and the ruled. This is by no means confined to Scotland, and the Westminster government has also been criticised for trying to “rule by decree”. But Britain has a robust parliament, which is at least objecting to this tendency. Not so in Scotland. We have an inert and, some would say, almost craven parliament which rubber stamps government legislation, much as the old parliament did before 1688.
Fifteen years ago, having written two sailing books, and a detailed account of the greatest libel trial in British legal history – Aldington v Tolstoy – I decided to make a study of the judges in Scotland, partly because they seemed to me to hold the key to the way Devolution was developing at the time, and partly because of their importance to anyone interested in the history of Scotland as a political entity.
To skip forward briefly, I did this, and published the results privately because I was by then living in Moscow, where I ended up staying for twelve years. There, I was researching the book which I am now writing, which will be called Russia and the Rule of Law. In Moscow, it soon began to strike me that, in terms of approach to the electorate, the Kremlin has had a lot in common with Holyrood since the Scottish National Party took power, in 2007.
When I returned to Britain, in 2018, I decided to write a short history of the constitutional arrangements of the new Scotland, set in a historical context, which would illustrate those parallels, and act as a warning to an electorate which has been beguiled by a personality, much as the Russian one has. Neither Sturgeon nor Putin has much of a policy for government beyond negatives: Putin blames most of Russia’s difficulties on the Americans, just as Sturgeon attributes most of Scotland’s troubles to English (Tory) malfeasance. Commentators in Moscow often ask what will happen to their country once Putin goes. In Edinburgh, many people wonder what will happen to Scottish nationalism when Sturgeon leaves the scene—as she, like Putin, someday must.
I decided I would add my “political” analysis to my “judicial” one and publish the two in a single volume. The result is The Justice Factory: Can the Rule of Law Survive in 21st Century Scotland? This came out in October this year, and is organised into Part I – The Judges, and Part II – The Politicians, reflecting my belief that the rule of law can exist only at the intersection of the axes of politics and law. Law has to be above politics, but politics must decide what the law is. That, put crudely, is my theory of reciprocity as the essential characteristic of governance in states living under the rule of law.
It will come as no surprise to anyone who is not a star-struck Sturgeonite that Part II illustrates the way in which Ministers, MSPs, civils servants and many others in public life in Scotland today try to prevent the public from finding out what they are up to and why. The phrase “openness and transparency” in Scottish official circles today has about as much objective meaning as Arbeit Macht Frei had in the context of Auschwitz in the 1930s. (Though the office of the Parliament itself, was usually helpful.)
What is more interesting in one sense is the way in which the judges also tried to prevent my finding out what they do and why they do it—at least some of them did. I have to say that there was a large number—perhaps half of those I asked—who were extremely happy to help. That is why I was able to write the book which, I should add, is the only account in English of the way senior judges think which is written in the words of the judges themselves. I could not begin to summarise their fascinating observations here. What I do want to do is to illustrate the problem of secretive judges by quoting the memorandum which Lord Hamilton, then Lord President of the Court of Session, circulated to all the Court of Session judges at the time I was starting my research. Fortunately for me, one of the judges who felt more strongly about judicial independence than Lord Hamilton showed me a copy of the memo.
It seemed to me that the Scottish political disease was beginning to affect the judges. That could be very dangerous for the rule of law. It depends on the separation of powers, and on judicial independence. It is relevant that the current Lord President, Lord Carloway, was one of those who “obeyed” Lord Hamilton. In The Justice Factory, I not only reproduce the Hamilton memo, I also reproduce my letter to Lord Carloway asking for an interview and his reply.
That would seem to suggest that the principle of “openness and transparency” has not made much progress in 15 years, even within the judiciary. However, I am happy to say that many senior people have supported my initiative. The most significant in judicial terms must be Lord Hope of Craighead. He was Lord President of the Court of Session himself in the early 1990s, after which he sat on the Appellate Committee of the House of Lords. From 2009-2015, he was Deputy President of its replacement, the UK Supreme Court.
Not only did Lord Hope kindly agree to write a Foreword to my book, he also discussed Lord Hamilton’s memo in that Foreword:
‘Lord Hamilton’s advice to his judges was that to speak to [Ian Mitchell] would be “high risk”. The fact that he gave this advice without first meeting and speaking to the writer was due, perhaps, to his need to maintain credibility with his judges. Several of them would certainly have criticised him severely if his advice had been the other way. But it was unfortunate. Had I still been the Lord President I would at least have wanted to meet the writer first. My open-door approach was departed from by Lord Rodger, and his approach has been followed by his successors. As it happens, so far as I can see, none of those to whom the writer spoke to was at risk. But the risk to those who refused to speak to him was very great, as they deprived themselves of the opportunity to put their case in reply to the gossip about them.’
There are always two sides to every story, and this is especially true of law. If there were not two sides to every case, nothing would ever come to court, and all judges would be unemployed. There can be no monopoly on wisdom of the sort that Ms Sturgeon and Mr Putin like to claim they have. My book, I hope, illustrates why this is true at the highest level of the interaction between law and politics. I trust it will stimulate informed discussion of all these important issues.
The Justice Factory: Can the Rule of Law Survive in 21st Century Scotland? (2020) is available on Amazon at this link: The Justice Factory: Can the Rule of Law Survive in 20th Century Scotland? (2020)
Ian Mitchell is the author of the best-selling “Isles of the West: a Hebridean Voyage” and the critically acclaimed study of the greatest libel trial in British legal history, “The Cost of a Reputation: Aldington versus Tolstoy”. Robert Harris said, “It reads like Bleak House rewritten by Alexander Solzhenitsyn”, and the Independent on Sunday wrote, “As legal thrillers go, it beats John Grisham.” Ian Mitchell lived for twelve years in Moscow, where he researched his forthcoming book, “Russia and the Rule of Law”. He lives in Campbeltown where he also makes films about books he has read in the course of his research. See his YouTube channel: “Ian Mitchell’s Book Recommendations”