14 March 2012

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.


  1. Here's what I wrote in The Lockerbie Case blog on 19 May 2011 when Mr Mulholland's appointment was announced:

    This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister).

    The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.

  2. LPW, you are impossibly high minded (for a nat).

    The SNP had no clue about how they were going to finance the building of schools without PPP (which they opposed implacably). They still have not completed one school after 5 years!!!

    If they haven't thought about how they are going to adddress this most mainstream of political tasks* how can you expect them to have even remotely considered arcane legal niceties like the exact powers of government legal officers????....

    Anyway, after we get "independence" it'll all be magically corrected....

    *and many others...LIT, Student Debt, class sizes...

  3. LPW, you are impossibly high minded (for a nat).

    The SNP had no clue about how they were going to finance the building of schools without PPP (which they opposed implacably). They still have not completed one school after 5 years!!!

    If they haven't thought about how they are going to adddress this most mainstream of political tasks* how can you expect them to have even remotely considered arcane legal niceties like the exact powers of government legal officers????....

    Anyway, after we get "independence" it'll all be magically corrected....

    *and many others...LIT, Student Debt, class sizes...

  4. It is commonplace in many jurisidictions where legislation is required to comply with the (written) constitution to have a procedure to submit an Act to the constitutional court in advance for a ruling on constitutionality. An ommission from the Scotland Act perhaps? In which case is it to be remedied by the unionist parties in their new Sotland Act, or incorporated in a draft consitition by the SNP?

  5. This is one of the most lucid bits of constructive criticism of the Scot govt I've seen for a long time; and nicely followed up by the comment from Robert Black.

  6. HL, as you suggest, there is a range of checks on Scottish legislation. It is within competence only if, inter alia, it is compatible with Convention rights and Community law. The Scottish Ministers must present it to Parliament with a declaration that it is within competence, which means the Lord Advocate must have crawled over it (s31(1) of the Scotland Act 1998). The Presiding Officer must certify it as within competence (s31(2)). But these uppity Jocks’ words aren’t just taken as gospel: the Advocate General, the Secretary of State and the Attorney General, God help us, can all crawl over it to make sure it is within competence (s33), with an option to send it to the Supreme Court for a ruling. In fact all these checks are not necessarily a guarantee. One would have thought that by 2010 all these individuals, who are paid a great deal more than you or me, would have got used to the system and have become aware of the potential for judicial activism, yet in the Cameron case only a few weeks ago the HCJ struck down a section on bail inserted by s58 of the Criminal Justice & Licensing (Scotland) Act 2010.

    I think it was correct to attempt to depoliticise the role of the Lord Advocate, but as LPW suggests, what in practice has occurred is that the Crown Office tail is now wagging the Scottish Government dog. This would explain Carloway, which overturns in a fairly breezy manner centuries of Scottish practice largely, it seems to me, to make life easier for the prosecution. It might explain much about the Megrahi case. And the faulty provision of the 2010 Act does look like an effort to simplify the Crown Office’s task, rather than anything more high-minded. Actually, of course, there’s lots of independent legal advice available to the Scottish Government. It is quite capable of engaging counsel to fight its court battles and is presumably capable of seeking their opinion as well. Some, like the late Paul McBride QC, are often keen to offer their advice free of charge. But there has to be a readiness to take it.

  7. Hate to distract (in what is going to be a lengthy comment) from the issue that LPW is talking about, but Braveheart, a little more clarity on that claim about not completing a single school - do you mean that not a single school, primary or secondary, has been built in Scotland during their time in office?

    If so, that's simply not true - in the Vale of Leven area of West Dunbartonshire Council alone, two schools have been built since May 2007 - a new Vale of Leven Academy (one half of which was burnt down in June 2002) was started in January 2008 and completed by August 2009, whilst Bonhill Primary School was also moved into an entirely new building built somewhere after 2009 when I moved away from the area. Even if those are the only two schools that have been built in the entire country - which I doubt! - then it's still more than none!

    Specifically on the issue of Vale of Leven academy - I started attending in August 2002 at which point we were told it would take until we were in third or fourth year to complete a new school. In December 2007, by which time I was in sixth year and still being taught half in portacabins, teachers were still expressing doubt that building work would be starting any time soon, only for work to start in January taking us all by surprise. Now, I have no idea what was happening with the council or the government at that time, but I personally find it hard to believe, given the years of inaction under a Labour council and squabbling over the size and number of classrooms etc, that the SNP coming to power both nationally and at the local council level had nothing to do with a new school FINALLY being built. It certainly seems to me that there was a bit of arse-kicking going on that prompted a sudden flurry of activity.

    If that was not what you were implying at all, then I apologise!

  8. But how could they have made a political appointment in 2007? They had a majority of one remember. People often forget that when the SNP Government was first elected they were not really expected to stay in office. The fact that they did was due partly to their ability to outface the opposition but mainly by making concessions where they could and some clever negotiating over budgets. But the opposition still tried, systematically, to bring down each and every minister. And if there had been any political appointees they would have done the same with them and quite possibly succeeded where they failed with the ministerial team. Of course things are different now. The Government can pretty much do what it wants so maybe they will revisit that,

  9. Braveheart. What was the point of intervening in a perfectly sensible dialogue about important matters to post a retread Labour press release from 2010? In my local paper this week, the (Labour) leader of South Lanarkshire Council is talking about the large number of schools the authority is building. Before posting such nonsense again, please put your hand up and ask permission.

  10. @AFaulds

    Schools can be financed in many ways. Sometimes a Council will identify capital, take a loan whatever and build.

    Sometimes, and this is what I am referring to, the Government at Holyrood will provide a proportion of the finance and the Council the rest. In 2007 the SNP promised to "match Labour's school-building programme brick for brick", that is, they promised to provide the finance from Holyrood to enable councils to build the same number of schools that Labour would (i.e. hundreds).

    But the SNP also promised to abolish PPP. This left them with no mechanism for financing schools or for getting the cash to councils.

    So no new schools were commissioned from Holyrood for at least four years. My council has one in planning but it will not begin building 'til (at the earliest) late this year. That'll be seven years since we began our last school (completed 2007).

    Some schools have been built: I passed a lovely new one in Greenock last week, but that was part of a PPP initiated before the Nationalists stopped councils from using PPP.

    So the Nationalist government has been responible for no schools commissioned by their money and completely built in the 5 years thay have been in power.

    In fact very few have even been started.

    It's a record of incompetence and idealogical idiocy that, had it been any other party, we would never hear the end of it.

    BTW, irony of ironies, the so-called Scottish Futures Trust, which is the Nationalists chosen conduit for new schools funding is insisting councils use NPD, a PPP format, for any new schools......

    You couldn't invent a better case study of government ineptitude if you tried.

  11. Braveheart,

    I prefer to think of myself as feasibly high minded!


    You asked "how could they have made a political appointment in 2007? Exceedingly easily. They made several - ministers, cabinet secretaries - and traditionally, the Lord Advocate was a post sitting in the cabinet. I'm not saying that they should have appointed any partisan hack to the job - but do you really think a knife-edged Holyrood would have, in conscience, rejected the appointment of a QC with public law experience with noted (or notorious) pro-nationalist leanings? This after a string of Tory and Labour law officers have been (as I understand it) members of their respective parties? I can't see that happening. No; this was a choice pure and simple for Salmond, which has, for the reasons I've suggested, was not his wisest ever move.