Lord McCluskey: Democracy mocked by SNP actions

Lord Bonomy and his team are to be congratulated for the thoroughness with which they explored the issues, despite the attempt by the previous Justice Secretary to restrict their remit by prescribing very narrow terms of reference.

But what lies at the heart of the matter is not merely a legal issue. The way in which this whole matter was handled by the SNP Government should ring alarm bells for anyone concerned about the future of democracy in Scotland.

The Justice Secretary used the SNP majority to railroad through a major change in law that had stood for centuries.

Its workings were not always perfect and there was a case for a thoughtful re-examination of its impact and value in the modern context, taking account of the experience of the judges and practitioners who operated the rule on a daily basis. There was no reason whatsoever to suppose that those with wide and deep forensic experience had any axe to grind: their concerns were with the best ways of seeking justice in an imperfect human situation.

However, the Government decided that it could override the near unanimous judgment of those, especially the judges – whose concern was with justice, not with “winning” of “losing” cases.

The then Justice Secretary decided to rely almost solely on those with a necessarily partial view, namely the police, professional prosecutors and women with a well-justified criticism of how victims of sexual assault were treated, but who were not in the best position to judge the flaws and possible remedies.

Having made his decision, Mr MacAskill and his colleagues used a party majority in a uni-cameral parliament to steamroller any opposition, doing so with a tendentious rhetoric that shamed those responsible for administering justice.

Those of us who were closely involved in trying to find a sound and workable solution to a real problem were well aware that there were many in the governing party who had serious misgivings about what was being done.

But it was plain that, in the run up to the Referendum, no hint of dissent was to be tolerated; so the internal voices of caution were silenced.

The handling of this matter demonstrated dangerous flaws in the governance of Scotland.

It was a prime example of what Lord Hailsham called “elective dictatorship”, which happens when an elected parliament, not constrained by a written constitution, uses its whipped majority to enact laws without a balanced consideration of the consequences.

The use of that technique threatens the broader working of democracy itself.

For Democracy is not just about securing a parliamentary democracy and then using it to enact political and social ideas or fashions. Democracy demands that the legislature, and the executive that controls it, always listen to the other voices that are equally essential to the working of a democratic society.

These include an independent Judiciary, the Press, the Non-government organisations, including Charities and Trades Unions, that speak for special interest groups, as well as the Churches, the Academic world, the Police, a second deliberative, delaying chamber of parliament, and all who constitute what we now call Civil Society.

If you look at any country where independence is treated as a dirty word, where the Press, the Judiciary, the Police and the military are subservient to the political power, then you see a mockery of democracy.

The Scottish Government is a creature of Statute: in theory it is subject to the overriding power of Westminster. But that theory is becoming increasingly unreal: if Westminster were to overrule legislation that was truly within the devolved competence of the Scottish Administration there would be a massive constitutional crisis. Yet the vitally important feature of the devolved system in Scotland is that, unlike Westminster, it has no “conventions” that underpin democracy.

The UK has evolved such conventions over centuries and, in doing so, has got by without a written constitution. It has the power to act like an elective dictatorship (as indeed it did during the Second Word War) but the restraints upon taking such a course in peacetime are real and effective.

The Scottish Government, regardless of its political make-up, has somehow to find a way to create the kind of conventions and restraints that evolved over centuries in the U.K. If it does not do so, we will have more nonsenses of the kind that led to the Corroboration fiasco – some much more dangerous.

Corroboration is not the most important issue in Scottish society; but the way in which it was treated by the legislature makes me think of the fate of the canary down the mine: when it falls from its perch, you know that it is not just the canary that is in danger.