10 November 2010

Wednesday is gallimaufry day...

The girning tyrant Work is laying on the lash and issuing orders this week, so a hasty gallimaufrous blog is called for this Wednesday morn. Firstly, I was delighted to read this piece over at Bella Caledonia on "Independent Women". Caitlin O’Hara asks:
(1) why do fewer women support independence? (2) why do fewer women take part in public political discourse? (3) What role models are there in the public eye that Scottish women could aspire to? and (4) Why is the image of Scottish nationalism so male?

Fascinating questions all, each in its way calling for a substantial disquisition. We'll only get anywhere if we discuss these issues - winkle out our ambivalences - notice what goes unnoticed in our social world, the mute and noisy ideologies of gender, with its divisions, permutations and ambivalences. Reading O'Hara's analysis, I'm reminded of Holyrood's moves to rename their Committee rooms after Scottish worthies. At the time, I managed to acquire the full list of names which the parliament considered. Its worth recalling that no Scottish women were included in the list first proposed but Holyrood finally went for:

1. Robert Burns
2. Mary Fairfax Somerville
3. Sir Alexander Fleming
4. James Clerk Maxwell
5. Adam Smith
6. David Livingstone

Secondly, to Alan Trench on Devolution Matters, who writes about Westminster's Public Bodies Bill under the headline "Getting legislation seriously wrong". The Bill is the sputtering taper that will send the consuming flames leaping through Britain's dreaded quangocracy. However, it appears as if Cleggy, lit match clutched in paw and eyes wide with the prospect of arson, hasn't reasoned through the significance of Britain's decentralised state and how Westminster unavoidably interacts with devolved authorities in the schemed fire-raising. Argues Trench:

"This is evidently a case where the UK Government is legislating in haste, or trying to.  It’s in such haste that the leisure to repent is occurring while the bill is still in Parliament.  (It also seems not to be the only case where Nick Clegg has found himself swamped by the intricate nature of government.)  But to adopt such a heavy handed and constitutionally inappropriate way of dealing with the devolution aspect of this is a vivid reflection of the limited interest of the Coalition government in getting these right."  

Thirdly, to Mike Dailly of the Govan Law Centre, who writes in the Firm about a truth almost universally acknowledged among Scotland's more progressive lawyers, but a bit of a trade secret. In Cadderland he writes:

"Allow me to say what many senior Scottish lawyers think but are reluctant to broadcast: when it comes to protecting civil liberties and human rights we don’t generally rely on judges in Scotland; nor do we rely on our politicians, generally speaking, either side of the border. We rely on judges in London. The English Court of Appeal is considerably more progressive than the Court of Session, and quite frankly, the UK Supreme Court has done us a considerable service with its judgement in Cadder."

Maggie Scott QC, no doubt enjoying her liberty after Tommy Sheridan dropped his briefs, pens a similar jeremiad in the Scotsman ~ "All those in favour of unfair trials, please stand up"
"... I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here. In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged."

It is vital for independence-minded Scots to admit frankly, candidly, that the separate institutions of Scots Law may not be the immediate jewel of our separate identity, but a millstone around the neck of our progressive politics. In this respect, we have reason to recollect the fate of the unfortunate Thomas Muir...


  1. I agree that Scots Law may not be perfect: indeed it may be a poor thing, but it's our own. And if it isn't very good at ECHR cases, the answer is not to thank a merciful Providence that we have wise London to look after us: that is cringe of the worst description, and it does Mike Dailly and Maggie Scott no credit to perpetrate it. The answer would be to free up our own legislature to be able to do something pro-active without tripping over reservation of the constitution on the one hand, and the vires control in s57(2) of the Scotland Act on the other. And it is worth pondering just how it is that the likes of Lord Hope and Lord Rodger should become such free spirits when on the UK Supreme Court, when they may have been equally bad time-serving lickspittles as Senators of the College of Justice in their day. Is it something about being a judge in the legal system of a suppressed nation that schackles them?

  2. Am Firinn,

    You raise a fair point. After all, Lords Rodger and Hope were Lords Justice General in their day - and can hardly be made out to have been formed of the spirited stuff of a more progressive English juridical sphere. I'd be a fascinating study, to see whether we could winkle out the whys and wherefores of the particularly fusty esprit d'corps of Edinburgh's College of Justice, and why they frolick rather more when summoned south to bigwig mightily.

    Strategically speaking, representing your client, I can understand why you'd press your advantage down south. However, as I hinted at in the piece above, I see the conservative qualities of Scots Legal institutions as something to be contended with in the context of a nationalist political analysis. In short, it is our problem and down to us to reimagine the judicial character of our professional institutions - not as you say, something which requires us to be wedded in bobbing perpetuity to a Unionist appeal structure.

  3. So perhaps one of you learned chaps could consider writing the Scots Law equivalent of JAG Griffith's The Politics of the Judiciary, assuming such a work doesn't already exist ;0)

  4. A rather good suggestion that, Stuart. Although I'm working further of Scotland at the moment, empirical research into legal subjects is very much my schtick. I'd be most interested to revisit these issues more concertedly in a year or two. No need to place your pre-orders now!