An open letter to the new justice minister
May I be bold and offer you a word of advice, beginning with a story? The late John Smith often used humour to make a serious point. As the Soviet Union was approaching final collapse, he told of a young member of the Politburo of the Czechoslovak Soviet Republic who, attending his first meeting, listened silently while the old apparatchiks droned interminably on. Finally, the general secretary turned to him: "Comrade, would you like to say something at this, your first opportunity to contribute to the governance of our great Soviet Republic?"
"Yes," he replied eagerly, "I propose that we create a ministry of marine resources."
"But," the chairman replied, "Czechoslovakia is land-locked; we have no marine resources."
"So what?" responded the young man. "We've got a ministry of justice."
The story reflects a truth that is being lost as memories of Soviet rule fade: the so-called ministries of justice of the Soviet republics had little to do with justice and everything to do with using legal processes to suppress dissent and bury inconvenient truths.
For us, the truth is different. But, despite your title, the true content of your ministerial portfolio is not "justice" at all.
You cannot provide, or even administer, justice. Society has entrusted judges with that responsibility. Their job is to try to ascertain the facts and apply the law impartially. They must act separately from the political power and apply the law impartially: that is the principal feature of the rule of law. You, as an experienced lawyer, understand that well.
So your job is different: it is to supervise the machinery of justice, to set the framework. That does not just mean the "pay and rations" - making sure there are enough judges, courts, clerks, to enable the administration of justice to proceed as smoothly as possible.
It also means you must consider what measures, if any, are appropriate to lay before parliament to give effect to the considered and educated views of the public on such matters as sentencing, legal aid, rules of evidence, detention before trial and prisons. If you persuade parliament that change is necessary, then parliament enacts the law and the judges apply it, whether they like it or not.
You hardly need me to remind you of this. Yet there is a seemingly irresistible temptation for ministers to try to "do something", to make a mark, to fashion a so-called reform that will be a lasting monument to the wisdom and perspicacity of its progenitor, and provide a line for the inevitable obituary.
Forget it. Remember Diogenes. He was the wise man who, needing little and wanting less, lived in a barrel, enjoying the sun. Men came from far and wide to seek his advice. One day Alexander the Great himself arrived. Standing over the tub, he asked: "What can I do for you?"
Diogenes replied: "Just stand to the side, you're keeping the sunshine from me."
The lesson is sometimes the best thing is to have the humility not to interfere. For a minister of justice coming to office in Scotland, it is essential to remember our system has taken its shape on the anvil of experience. It is wiser than any of those who fashioned it.
Even for you, a lawyer, the temptation to change is powerful. Your will to resist that temptation may be undermined by your inheriting a civil service machine that has hitherto shown little grasp of what make the Scottish system uniquely valuable. The previous administration, with a mix of arrogance and prejudgement, turned its back both on the history of how our system developed and on the massive studies that reassessed our legal institutions.
It produced so-called consultation papers and ignored responses challenging the superficial thinking that lay behind their proposals.
You are free to think for yourself. Please start again, remembering the history of our courts. You have plenty of time. Study the 20th-century history of their reform. Don't lay yourself open to the charge of arrogance, the charge that you imagine you know better than the historical process that gave us one of the world's finest legal systems.
You don't have to do anything. Emulate the bon vivant Lord Justice-Clerk Aitchison, who, when asked by his macer how he would respond to a newspaper's description of him as "the well-known Sottish judge", replied: "I shall just sit tight."
I keep using the word "arrogance". So is this a case of an old pot warning a new kettle not to turn black? Of course it is! But this old pot has little power and no responsibility. You have both. We look forward to your exercising it with wisdom.