What can three centuries of an independent Scottish legal profession tell us about Scotland’s likely ability to rule itself?
by Ian Mitchell
It is often said by those who oppose independence from the United Kingdom that “Scotland cannot rule itself (competently)”. What clues can we get to the answer to this question from looking at the way the Scottish legal system has operated in the three centuries since the Acts of Union? I have recently published a book, called, The Justice Factory, which tries to address this issue, which should be of great importance in the independence debate, but which seem to have been largely overlooked—probably for lack of hard information. I have tried to provide that.
The law is a good indicator of administrative competence as it is the most important practical area of Scottish life which has been managed locally since 1707. The Church has lost influence, and its social security role, as it were, has been taken over by the state. Education has been largely “Britified”, so the law has carried the flag for Scottish governance. I have spent that last ten years trying to find out how well or badly it had done.
I narrowed my area of search down to the legal profession since the law as a body of rules has been substantially modified by the British legislature. But procedure and the structure of the courts have remained much more characteristically Scottish. So have the types of personality who operate our legal system. That was why I narrowed my field of research further and decided to concentrate on the judges in the Session and Justiciary Courts (though I did talk to, and about, several Sheriffs). If law depends to a large extent on the character of the judges, it is important to be able to form some assessment of what sort of people sit on our highest court benches. It is partly for that reason that I have quoted Ian Hamilton QC in my subtitle: “Show me the judge and I’ll tell you the law.”
The most cursory research into public attitudes towards the courts in Scotland, even if only conducted in the pub with a copy of that morning’s tabloid newspaper on the bar counter, will reveal that the majority of people think that our judges are arrogant, idle, capricious, snobbish, old, elitist, ignorant, male, Tory, toffish, chauvinist, rude and occasionally corrupt, and operate an informal conspiracy to ensure that the law is applied primarily for the benefit of people like themselves. My purpose in writing the book was to try to form a view as to the fairness or otherwise of that general prejudice.
My own view is that in a democratic society the thinking of judges about law in general—not about individual cases, of course—is a matter of legitimate public concern, as is their general character. In the United States this is reflected in the Congressional confirmation hearings which precede senior appointments. In Britain, both north and south of the border, we have a system of appointments boards, which are highly controversial (and discussed at length in my book) and which, in any event, do not meet in public. They publish no reasons for their decisions, so we do not know why this judge was appointed and that, apparently meritorious, applicant was turned down.
I could not second guess the Scottish board, but I could go and talk to some of the people who have been appointed, or who were appointed under the old, tap-on-the-shoulder system, and form a view of the results of the selections. Despite opposition from successive Lords President of the Court of Session, I was able to interview a substantial cross-section of our present and recently retired judiciary. My book is, in fact, the only one in the English language on the subject of the business of judge which is based primarily on the words of the judges themselves, some of whom are quoted at great length.
I also analysed the pub stereotype, which to get some sort of objective, or at least external, standard for I have taken from the Ian Rankin Rebus novels. How well does that describes reality? I discussed this both with judges and with Mr Rankin himself. Finally, I talked at length to the late Col. Clive Fairweather—a fine and sympathetic man who was for eight years Her Majesty’s Inspector of Prisons in Scotland—about the results of the judges’ work, at least in the criminal courts.
So what were the results of my investigations? Space forbids anything which would not be a cartoon-ish oversimplification of a complex response. Instead I will end by quoting from the final chapter of my book, in which one of the most distinguished judges of the recent past, Lord McCluskey, tells me a story which, from my other researches, I think fair. In retirement, he was involved with the society run by Lady Smith—the widow of John Smith—which promotes contact between Scotland and Russia. On one occasion, McCluskey was taking a group of young Russian lawyers round various Scottish places likely to be of professional interest to them. One was Barlinnie Prison.
McCluskey was keen to show these people how we in Scotland manage things. There was no condescension in this. Russia has a population 28 times that of Scotland, but it has 140 times as many people in jail, more than five times the Scottish rate, per capita. More than that, conditions in Russian jails are notorious for their brutality, disease and emphasis on retribution rather than rehabilitation. Having looked round the prison, McCluskey asked if he and his party might talk to some of the inmates. The Governor said that so long as the prisoners concerned agreed, he would have no objection. Accordingly half a dozen of them were presented in a meeting room to the half dozen Russians, who duly introduced themselves. Then McCluskey, sitting at the head of the table, went round the six prisoners asking them to give their names and state the length of their sentences. All did so, until he came to the last, on him immediate right, who sat silently, looking at him quizzically.
“So, tell me, what is your name, and how long are you in for?” McCluskey asked.
“You ought to know,” the prisoner said. “It was you who put me here!”
“We cannot have a really oppressive justice system,” McCluskey commented to me, “if that kind of exchange is possible between a judge and the man he sentenced. Try to imagine the situation in Russia—or America, even!”
The Justice Factory: “Show me the judge and I’ll tell you the law” is available through all good book shops.
Ian Mitchell is the author of the best-selling Isles of the West: a Hebridean Voyage and Isles of the North: a Voyage to the Realms of the Norse. He also wrote the critically acclaimed study of the most expensive 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 lives in Moscow, where he is researching a book about the history of the Russian legal system.