14 May 2009

Scottish judges invent a constitution...

Lets admit it. Whoever decided to christen the proposed legislation the Criminal Justice and Licensing (Scotland) Bill lacked imagination. Hegemonic blandness seems to be the stylistic preponderance among drafters of our would-be laws. These ink-stained souls inflict their deep-rooted prejudice against snappy titles upon generations of law students and professionals, no doubt achieving a dribble of blotted pleasure by reusing the blandest of names simply to confuse would-be investigators.

Such are the papery pleasures of our attorneys.

Meanwhile, as the sun was just beginning to canter on its circadian circuit over Holyrood on Wednesday, in Committee Room 1 Baillie Bill Aitken and Holyrood’s Justice Committee congregated to take evidence from a cavalcade of Scotland’s legal worthies on the aforementioned legislative suggestion.

I’m torn when viewing these proceedings. On one hand, they firmly demonstrate how devolution of power creates spaces in which useful interaction between the branches of state power can occur. Connections are made, suggestions aired. This can be productive. However, on the doubting left limb, it is impossible to watch the way most of our representatives addressed themselves to the congregated judges and sheriffs without being slightly disgusted.

The tribunes grovel terribly. Absent is any manly (or womanly) firmness which ought to operate between citizens, or that brisk but respectful egalitarianism of sentiments and style which one would hope might prevail among a free people, resolving a public question by discussion and debate. Although difficult to capture and largely inchoate in its expression, the abasement and deference which the MSPs practised towards Arthur Hamilton and Brian Gill looked, to my eye, positively snivelling.

It must be a matter of disappointment to Bill Aitken that on account of the male pattern baldness which has afflicted him, he is without a forelock to tug.

For the main, it was rather turgid stuff which I wouldn’t propose to cover in any real detail. One element of our judges’ evidence, however, cannot politely be ignored. The Herald article focuses primarily on the judicial hostility to a proposed Sentencing Council. Their Lordship’s little doubting thoughts are actually an unsightly knot of different concerns, the disparate strands of which are easily muddled together, as they are meant to be. Individual threads are readily lost amid the tangle. The gist of the submission is bluntly plain: Don’t do it Kenny.

I want to focus on one particular claim made by (Lord President) Arthur Hamilton and (Lord Justice Clerk) Brian Gill which we’ll loosely characterise as their constitutional objection. While the judges’ points about cash concerns, a nudge and wink about difficult choices in an impending age of austerity may be fair, and prim finger-wagging about paucity of evidence is not wholly unreasonable, the way Hamilton & Gill harped on the constitutional string is to my mind, utterly ludicrous, a dud and objectionable note.

These are complex issues. I’d propose, for easiest comprehensibility, first to quote the double act’s constitutional objections, then to suggest why we should all reject their arguments with direct and unyielding ferocity. To their credit, Nigel Don MSP and others did express their doubts in Committee, but not half to tartly as I could have wished. I’ve highlighted the sections of the submissions which are, to my mind, of the first importance:

Quoth the judges, in their written submissions, sections eight and ten:
8. Thus a range of mechanisms already exist for exploring and developing sentencing issues. These could no doubt be improved and, perhaps, as suggested below a wider participation be engaged. However, the central and essential element of these arrangements is the constitutional principle that, with limited and specific statutory exceptions, the High Court has always been and remains the body ultimately responsible for decision-making in the development and implementation of sentencing policy. We regard that principle, which is well-noted in Scotland, as of the first importance.

10. Whatever may be asserted about the residual discretion of individual judicial office holders when passing particular sentences, the Bill’s proposals strike directly at the independence of the judiciary (and in particular of the High Court) as the arm of Government essentially responsible for the setting of sentencing policy. The proposals (as framed) are fundamentally unacceptable both on domestic constitutional grounds and because mandatory directions to the court by a non-judicial body undermine the judicial independence required of courts by Article 6 of the European Convention on Fundamental Rights and Freedoms.
Get that? The judges are suggesting that “the constitution” gives them wholesale monopoly on sentencing policy. Mandatory sentences for particular crimes are “limited and specific statutory exceptions”. One might well ask, what constitution was this in particular? You’ll notice that the judges don’t point to any specific grounds of authority for this flagrant suggestion. Nor could they. They wouldn’t find any. Even the reference to the European Convention is in bad faith, as it can only be a backwards rationalisation of their claim for traditional and essential and exhaustive competence over public policy respecting sentencing.

Lets be clear about this. The judges aren’t claiming simply that individual disposals should be theirs to make. Rather, on unfounded, alleged “constitutional” assumptions, they are claiming a conscientious oligopoly over the normative imperatives of how crimes should be adjudged, and what tariff of punishments should be meted out to the guilty.

Perhaps an overstatement, do we think? They’d no doubt produce the evidence when it came to the bit, grounding their grand constitutional claims to entitlement? Lets look at the oral evidence and see. At various stages in proceedings, Gill and Hamilton made the following observations:
“It is part of the constitution that it is for the appeal court to determine sentencing, except to the extent that legislation lays down what the sentence should be.” Brian Gill, Lord Justice Clerk
To his credit, Michael Don MSP put it to Arthur Hamilton, what if Parliament did away with prison altogether? Wouldn’t the High Court of Justiciary, in his words, be “stuck with it?"
“I am trying to distinguish between policy development, which I think is for us, for better or for worse, and individual sentencing, which is clearly and unambiguously for yourselves.” Nigel Don MSP
Lord Hamilton replied in a model of mealy mouthed disagreement, the implications of which are simply astonishing. Quoth the Lord Justice General:
“There is a debate here: although it is technically within the powers of the Parliament to say that there shall no longer be imprisonment, there is a question as to whether it would be proper for it to do so. Likewise, there is a question as to whether it would be proper for it to remove from the High Court the powers that it has exercised hitherto.”
As I read this, Lord Hamilton’s vision of debate here is not on whether one should do away with prisons at all. No, no. Rather, he concedes the plausibility of the thought-experiment and even the “technical” – by which I assume he means “legally entitled” – capacity of the Parliament so to do. So what does this “proper” category relate to then?

Clearly not the appropriateness of doing away with custodial punishment. Indeed, insofar as he relates it to the matter they are currently discussing, he seems to be suggesting that such a move may not be constitutionally proper. Note the subtle change in tone, because it is easily missed. Returning to my prior point: what constitution are they referring to? This remark makes plain the true substance of Hamilton’s comments.

He is not saying, descriptively, as a matter of law, that the constitution is a barrier. Rather, the judges are advancing a normative, evaluative claim about how we should organise our state institutions.

Hence the reference to Article 6 of the ECHR. The string being harped on here is that we ought to have separation of powers. Which is fine, if one is honest and write “We think that….” Or that “the High Court has always been and remains the body ultimately responsible for decision-making in the development and implementation of sentencing policy” – and so should remain. However, the judges aren’t being so plain in their written submissions. Rather, they are cloaking their views in a bogus constitutionalism, in what seems a consciously manipulative fashion.

After all how are parliamentarians to take such a claim to constitutional knowledge from the most elevated judicial officer in the country, who as Bill Aitken gloatingly remarked, “best knows the legal system”?

Will they take such references to constitutionalism as a statement of law, with firm foundations – or a much wobblier judicial preference? I know which one seems more likely to me. Such a remark is most obviously understood in the misrepresentative manner of signifying legal constraints. To leave it hanging, without clarification, I would suggest almost amounts to a misrepresentation to the Justice Committee. Such flagrant claims to constitutional knowledge, concealing sectional preference, cannot withstand clear-eyed examination.

Sentencing policy is well within Parliament's grasping reach, as it ought to be. I'm not saying that we should have a Sentencing Council of the type envisaged in the draft bill. In fact, I generally dislike bodies arranged along similar lines, whose independence stands apparent justification for their decisions. However, the rubbish the Lords and Ladies of Council and Sessions are spouting here ought to be repudiated utterly, and seen for what it is. A cunning ruse.

[Anyone inquisitive enough can watch these evidence-taking sessions at Holyrood.tv]


  1. The deferential attitude you describe brought to mind councillors on the local police boards; for accountability read backslapping and bonhomie with senior police officers.

    (Of course, as the closing paragraph of the Herald's article perhaps suggests, maybe Bailie Bill's stance towards the judges was born of politicking against Kenny MacAskill.)

    As for the constitutional issue, perhaps their Lordships were alluding to the doctrine of the separation of powers, and that a sentencing council would be more executive and/or legislature rather than judiciary and to that extent breach the doctrine?

    The response to the hypothetical point about parliament abolishing imprisonment does seem ridiculous though.

  2. Hi Lallands,

    I must admit my first reaction to the Judges' presentation was that "Here we go again. Labour or Tory judges stick it to the SNP just before an election.", oh and of course, the perennial "This is our turf. Keep off!" I have heard little since to alter my initial opinion.

    Any avid reader of the tabloid press would find Lord Hamilton's statement "There is no empirical evidence that there is any inconsistency of senticing" risible, though to be fair most of this opinion would be based on English determinations. However there is still probably a case to answer in Scotland too.

    Surely the current situation arises from the democratic deficit in Scottish law that devolution was supposed to correct? i.e. to correct Westminster's percieved (and in my opinion actual) disinterest in most things Scottish.

    The Scottish Legal community had better get used to this type scrutiny, because there will surely be much more of it to follow in the years to come.


  3. The POLICY on sentencing MUST lie with the elected Parliament. In a democracy, anything less will not do.