The wages of Salmond's blunder in 2007?

During her speech at the weekend's SNP Conference in Glasgow, Nicola Sturgeon made this curious plea in relation to Holyrood's second go at the minimum alcohol pricing legislation:

"This week, I agreed that the legislation will have a sunset clause. That will allow us to test the policy in practice but give parliament a built in right to review it after five years and then decide its future based on the evidence. Minimum pricing will now pass into law with the backing of four out of the five parties represented in our parliament and with an overwhelming majority.

I am confident that it will prevail against any legal challenge that might come its way. But tying it up the in the courts will delay the benefits it can bring.  So my message today is this: let us all respect the will of parliament, let us turn this policy into practice and let us get on with the job of sorting out this nation's relationship with alcohol" (emphasis mine).

While the SNP government's approach to the independence referendum has been to deny any arguable difficulty in law with their plans, interesting to see Sturgeon taking a radically different tack on the alcohol issue, explicitly recognising the likelihood of this politically-prominent Bill ending up before judges. Reading the speech, I was struck by the fact that Sturgeon is only the latest in a run of Scottish Ministers who have had to contend with contrary courts and with legal dilemmas, in the pursuit of their goals. And damned frustrating too, I'd warrant. 

Although the basis for Sturgeon's potential difficulty is European Union law - about which I'm regrettably clueless - we've seen parallel arguments adduced across Scottish departments of state. Lawyers would tell you that the legal sources standing behind these different political controversies differ - and rightly too. In the justice brief, Cadder, Fraser and AXA concerned human rights protected by the European Convention and the powers of Scottish ministers and parliament, spiced with a little internal politics about Britain's many legal systems, the distinctiveness of Scots law, and the role of the UK Supreme Court. The legal competence of the independence referendum contends with the concept of "reserved matters" under the Scotland Act, while I understand minimum alcohol pricing could face its spot of difficulty on grounds of European Union law, on the free movement of goods.

What interests me isn't so much the theoretical detail or merits of these various disputes, but the sociological impact of this string of judicial controversies and potential controversies on the party leadership's general ideas about what the proper relation between ministers, legislatures and courts should be.  While all politicians of whatever stripe have to navigate the reefs and shoals of legality, and ministers should expect their government's best efforts to gang agley under judicial review at some point, particularly interesting to reflect on how the Nationalists are coping with it, for a couple of reasons. 

Firstly, it is one of the serious challenges of government. While it is moderately easy to be unrealistic in opposition, ministers tend to get shellacked for it eventually - and so contending serious-mindedly with these difficulties was always going to be a novelty for the SNP entering government for the first time. Secondly, if the independence referendum is won, there is a constitution to write, a new state to envisage - and a whole range of tricky posers about what sort of rights we may wish to entrench in law, what constitutional traditions we might want to ape or borrow from, which will require thinking through and decisions to be made. A Nationalist government which has delivered independence will obviously have a significant role in that process (but I hope, not exhaust it). If the attitudes of Scottish ministers to the constraints of law - whatever law - are being shaped from more or less unformed banality into some sort of more meaningful shape by their custodianship of public office, it is important to know what sort of images and ideas they are entertaining.

For those supportive of the judicial protection of fundamental rights and a non-sovereign legislature, the portents aren't particularly encouraging. Both Alex Salmond and Kenny MacAskill have criticised the Scotland Act's provisions on human rights protection, which mean that if a law or a Scottish minister's actions are incompatible with the rights protected by the European Convention, they are legally null, void, zippity.  Not so with Acts of the Westminster parliament. Instead, under the Human Rights Act, courts can only make a "declaration of incompatibility", stating that the UK legislation won't comply with fundamental rights, but this declaration has no impact on the validity of the Act itself, which remains in force.

Discussing the AXA case - the insurers' unsuccessful challenge to the Scottish Parliament's pleural plaques legislation on the basis of protected property rights - SNP MSP Joan McAlpine went even further, seeming to imply that having fundamental rights protected by courts was itself objectionable, or illicitly British, or objectionable and illicitly British, and Holyrood should be institutionally pre-eminent in its relation with the other branches of government (if giving due obeisance to popular sovereignty), and enjoy the same judicial review of its Acts as Westminster experiences: "the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it."

This is a coherent constitutional model, without a doubt. The only slightly sticky issue is that it is not recognisably what the party agreed to in its own draft constitution for a free Scotland, which explicitly provides for judicial review of the Acts of an independent Scottish Parliament in a fashion nigh indistinguishable from the jurisdiction presently held over Holyrood.  As I noted at the time, if an independent Scottish Parliament passed the Pleural Plaques Act, under the SNP's constitution, the big insurers would still have been able to bring their case before the Scottish courts.  It is all very well to regard this sort of relation between the legislature and courts as a "sham" - as seriously undesirable and contrary to the democratic primacy of the elected assemblies of the people - but it would be helpful if Salmond, MacAskill and McAlpine showed more signs of realising the implications of their arguments, and the (now discernible?) gap which separates their rhetoric on the protection of fundamental rights and the role of the parliament from the constitutionalism advocated by Neil McCormick and others, just a few short years ago.

It is not, I dare say, a major vote winner or loser for the purposes of the independence referendum, but it is a vital and exciting question which the new Scottish state will be faced with and a good deal more intellectual rigour and self-awareness from senior nationalist politicians on these issues seems indicated. As a crony recently observed - persuasively in my view - one arguably missed opportunity on this score is the SNP's failure to understand the political potential of its Law Officers, of the Lord Advocate and the Solicitor-General, when in office.  Under the current constitutional set-up, these two officers have dual functions. While the Lord Advocate is best known (particularly in recent years) as the chief public prosecutor, the job also entails acting as the chief legal advisor to the government.  

Rather different business, you might well think, and the SNP government clearly imbibed that logic. While Lord Advocate's role as chief legal advisor wasn't mothballed, that aspect of the job was starkly de-emphasised by Salmond from the get go. Emphasising instead the prosecutorial element, Salmond said he wanted law officers "independent from the political process" and since the party took office in 2007, all four of its law officers have been career Crown Office prosecutors, selected from the body of folk who have risen up in the procurator fiscal service, rather than finding a political fellow-traveller inside (or crivvens - outside!) the independent Bar. First, we had Elish Angiolini and Frank Mulholland (pictured) as Lord Advocate and Solicitor-General respectively, now Mulholland as Lord Advocate and Lesley Thomson as his deputy. 

That "depoliticisation" strategy obviously went to the wind around the Offensive Behaviour at Football Act, where (ironically enough) the enthusiastic endorsement of the independent prosecutor proved politically expedient for the beleaguered SNP. Yet surely this run of recent legal controversies in Scottish politics have demonstrated that it would be a darned handy thing for the devolved government, negotiating the tricky limits of their powers, to have on hand a legally adept source of good advice in the cabinet. That is not to say that the SNP should have installed a stooge to shill out legal advice blinded by partisanship. But given the steady stream of legal problems and controversies, it strikes me that it would have been in the SNP's own interests to have appointed at least one politically-sensitive, jurisprudentially-versed fellow-traveller to the role, who could have helped them with hard-headed advice on how to address the sort of legal problem solving governments are always bedevilled by.

With the best will in the world, a career public prosecutor is never going to be able to fulfil that sort of function.  Although Jim Wallace - the UK Government's Scottish law officer - has hardly been a Ciceronian advocate for his cause during recent public appearances, it is conspicuous, damaging - and totally unnecessary - that the SNP have no legally credentialled "political" law officer they can really put up against him. A loss both inside and outside the cabinet room, despite the superficial charms of Salmond's "depoliticisation" of the law officers in 2007, it is difficult to escape the conclusion that it has proved a politically enervating blunder for the SNP government.