I an indebted to an email from John Higgins for prompting the following reflections on the UK Supreme Court debacle.
I mustn't murmur against the judiciary, but with all due respect to the rule of law, it has never achieved the ideal of entirely standing outside of politics, nor has any judiciary in any country or kingdom or empire at any time in history. By the very nature of the ancient concept of judges, the process of appointing them is not, and never can be truly democratic (it doesn’t for a moment pretend to be in Britain) nor can it ever be free from the culture and the political climate within which it exists.
Of course the supporters of the UK Supreme Court and its recent human rights judgements argue that this is just what they are trying to do – stand outside politics - and that the Scottish Government and Alex Salmond are the nasty, sordid face of politics trying to pervert that aim. But then, they have that UK in the title of the Court to contend with. One only has to look at the most vocal supporters of the Supreme Court to realise that most – but not all - of them come from an anti-independence, unionist position, and that their opposition is in fact highly political. Last Thursday’s FMQs demonstrated that fact unequivocally, despite all the high-minded rhetoric – and unintentional low comedy.
(There was a documentary on the BBC Parliament channel some time ago on the formation of the UK Supreme Court that I recorded - but now can't find – that referred to the mysterious process of selecting and appointing judges, and I must track it down.)
The bottom line is that Scottish Law and the Scottish judiciary exist within a complex and confusing legal structure created by the Union of 1707, and the creation of the devolved Parliament and Assemblies, and membership of the EU has multiplied that complexity exponentially.
The UK Supreme Court is in effect UK law, yet there is no such thing as UK Law - this is the contradiction that Alex Salmond sees, and he is determined to highlight the dangers that he sees flowing from it.
The most jaundiced interpretation of the situation is that the UK Supreme Court was created to keep the devolved nations in check. The less extreme interpretation is that it was created with totally honourable and high-minded intentions, but that its purpose may be perverted by politics. If this happens, it will be the politics of the dying empire - the UK - that does the perverting. Failing empires do not go quietly into that good night – they rage, rage against the dying of the light. (My apologies to Dylan Thomas!)
One only has to look at how United States Supreme Court judges are appointed - a highly political and polarised process - to realise that not even the most exalted, altruistic individual is free from political influence or pressure. And remember, judges were all members of the legal profession before they were appointed, a profession that is heavily represented in the Westminster Parliament.
The break-up of the Union threatens the entire British Establishment - the aristocracy, the Monarchy (in its present dispensation) and the military/industrial complex, and the ramifications reach into European and American foreign policy.
The judges, however principled, cannot detach themselves from the society within which they reach their judgements and of which they themselves are a part, nor can they stand apart from great historical and constitutional movements - and we are in the midst of one right now.
I am not a lawyer, and have no legal training, so what the hell do I know? What I do know is that if a citizen cannot question the law, in all its aspects, then what is the point of law?
As the old Chinese curse goes - may you live in interesting times! And we do ...