A powerful judiciary must be the foundation stone of a constitution for an independent Scotland, writes Michael Fry
The US Supreme Court is, in certain ways, the most powerful branch of government under the American constitution. It can order the president and Congress to undo or not to do things that they have done or are minded to do. But neither can tell the Supreme Court what to do.
In the UK, we have since 2009 had a Supreme Court too, as the final court of appeal for all civil cases and for criminal cases from England, Wales and Northern Ireland. There has been a certain amount of indignation at its hearing a few final criminal appeals from Scotland as well, where these involve some point arising from the European Convention on Human Rights that it also enforces for the whole UK.
Practically everywhere that the rule of law is respected, the trend has been in recent times for the judiciary to extend its scope and, in particular, to increase its restraints over the executive and sometimes the legislative branches of government.
No doubt this is some kind of intuitive response to the enormous expansion all over the world of the power of the state. The legal restraints have not halted that, yet by judicial intervention the expansion has perhaps become a little less aggressive than it might have been. For this, the ordinary citizen can be grateful – especially in the UK, where his or her rights are not otherwise protected by a constitution.
When I was at school, we were taught that Britain did not need a written constitution because respect for individual rights was so ingrained among the people and their leaders that the rules to which lesser breeds had to submit themselves were superfluous. More recent experience has taught us better.
But in Scotland we may, by this time next year, be starting to discuss a constitution for a new state about to attain its independence. How nice it would be if we could avoid the pitfalls that have awaited the UK along its determined non-constitutional, even anti-constitutional path.
Top of the list of pitfalls I put the doctrine of the absolute sovereignty of parliament. This means that none of us has any rights except those conferred on us by parliament, which can equally take them away if it chooses to. It also means parliament is superior to the Supreme Court and can alter the law under which it operates – the reverse of the position in the US. This is because in Britain no separation of powers exists, no system of checks and balances among the different branches of government. We have instead a unitary constitutional structure, the Crown-in-parliament, of which the power is in theory absolute.
I hope a new Scotland rejects this absolutism. Ideally, I would aim for the executive and the legislative branches of government to be separated. In that case, for example, Alex Salmond and his ministers would not actually be members of the Scottish Parliament, though (as in France) they could come and address it at any time. The two branches would be differently elected, with relations between them so regulated that neither might dominate the other. The government could then no longer rely on a whipped majority to push through anything it wanted.
Above all I would have an independent judiciary, with its independence written into the constitution and secured against any executive infringement: the American system, in other words, not the British one. We possess in Scotland at the moment nothing like a Supreme Court, though it should not be impossible to construct one out of the existing tiers of the Scottish legal system.
This is an idea for making Scotland better than Britain that might have put in an appearance in the white paper on the referendum. But it found little to say on the subject. The guidance we have as to what, if anything, the Scottish Government has been thinking about all this comes from its own behaviour – and that is not encouraging.
Justice secretary Kenny MacAskill is engaged in an ill-tempered dispute with the judiciary about the rule of corroboration in Scots law, which requires evidence against an accused person to come from more than one source. He proposes to abolish this rule, a move supported by one judge but, so far as we know, opposed by all the others.
It is shaping up to be the sort of clash between judiciary and executive that is normal in the US, but up to now almost unheard of inside the UK.
Why should MacAskill, a lawyer himself, be attacking one of the unique features of Scots law, one on which it has prided itself? He appears to be responding to the lobby which thinks it scandalous that only 7 per cent of the rapes reported in Scotland result in a conviction. The nature of the evidence can obviously be a problem here, since sexual intercourse normally takes place between two people and no corroboration from a third is likely to be available, unless they are pretty kinky. But to go from there to ending the rule for all offences is surely taking things a bit far.
MacAskill has said this: “Laws are made by parliament, not one profession. This is about having justice in our communities. It is not a debate between learned legal friends.” There is a statement of the absolute sovereignty of parliament that would shame nobody at Westminster. It is also unpleasantly rabble-rousing. We will not find an infallible guide to justice in what communities think, given how public opinion has often condemned people who are wholly innocent. That is precisely why we entrust the dispassionate execution of the law to benches of judges, in other words, to debate between learned legal friends.
Let us hope that in a future Scotland, of whatever kind, these safeguards will be better secured than they appear to be in the collective mind of its government currently. The review announced by MacAskill last week gives some hope of that.