Subj: UK: Sco: Opinion: The law laid bare: Lord McCluskey's verdict



Date: 6 Feb, 2000



Source: Scotland on Sunday





The law laid bare: Lord McCluskey's verdict



Part 1: Ask yourselves the awkward question: Why do you get

a peerage if your family sells an intoxicating drug like

whisky, but the jail if you grow cannabis and sell it to

your friends?



DOES the law matter? I mean,who cares - apart from those

directly involved - about the thousands of cases that daily

get an airing in court? Few hit the newspapers, and, of

those that do, most sound boring and tedious, not to mention

that the result usually seems to be so obviously right, or

so obviously wrong that you marvel enviously that people get

paid fat salaries to sit day after day listening to devious

lawyers droning on, at our expense, incidentally. "And as

for yon bloody policeman wot knocked down that nice Sheena

wotsername. Twenty mile an hour? You must be joking! And

don't even mention that General Pinnochio."



Wait a moment. This is beginning to sound like the monologue

of a London taxi driver with dyspepsia and a shrew to go

home to. So let's start again.



Does the law matter? Of course it does. Just think where

you'd be without it. You couldn't buy or sell a house

without the law to guarantee the deal. You couldn't get

something on hire purchase, or credit, without the law -

however invisibly - providing a dependable foundation for

the simplest transaction. You couldn't get married, or

divorced, or pregnant, without the law coming into play to

impose upon you duties, rights and binding responsibilities

that you've probably never even thought of.



Do you have any insurance policies? Motor insurance,

perhaps? Health insurance? Are you in employment? Are you

contributing to a retirement pension? Have you sent your

jacket to the dry cleaners after that unfortunate incident

at Jimmy's wedding? Answer yes to any of these or a thousand

other everyday questions and you begin to realise that the

law is as pervasive as the midges on Mull. And we still

haven't even mentioned crime. So, yes, it matters. The law

is the framework that holds a civilised society together.

Remove it or neglect it and you end up with Sierra Leone or

Beirut, Rwanda or much of Russia, where the mob or the gun

rules and everything falls apart.



If you are not convinced that the law really matters, please

turn back to the sports pages and resume your ruminations on

yesterday's Six Nations rugby and today's Rangers/Hibs game.



When you begin to think about it, you're bound to ask who

made the laws the way they are, and why. Why do you get a

peerage if your family manufactures and sells vast

quantities of an intoxicating drug like whisky, but the jail

if you grow cannabis and sell it to your friends? Why do

women prostitutes get fined for trying to sell their bodies

for sex, while men don't get fined for trying to buy them?

Why did adultery used to be a crime, and why is it not one

now? Who decided that if an unmarried couple split up the

man's chances of getting custody of the children should be

so much poorer that the woman's? Look abroad. How come that

in some countries women are required by law to wear the

veil? Why can't citizens buy alcohol in Saudi while we can

take it home by the trolleyload from the supermarket?



You don't have to get answers to these questions to realise

that in different places and at different times somebody has

answered them, and written the answers into law. The more

you think about it, the more obvious it is that somebody out

there has been making all these choices about how we live

our lives. So who was it, and were we asked what we wanted?

And, if not, why not?



This brings us to the heart of the matter. For if someone is

choosing what we can wear, what we can drink, what we can do

and what we can think then we had better find out who it is.

It can hardly be those MSPs up on the Mound; they've only

been at it for six months. So what about our Westminster MPs

- of course, it must be them. But wait a moment, doesn't

much of our law come from centuries of accumulating legal

precedents? Who did the accumulating? Who made that body of

law? Who, for example, defined the crime of murder? Who

decided that euthanasia was murder but abortion was not? Who

decided that criminals should be given a right of silence?

Who decided, not all that long ago, that to form a trade

union was to engage in a legal conspiracy? Who constructed

the whole edifice that we call the Common Law, that

agglomeration of rights and duties, which, by the way, we

are deemed to know? For, as every schoolchild knows,

ignorance of the law is no excuse.



Well, the answer to that is no mystery. Generations of

judges constructed most of that edifice, one brick at a

time. It used to be thought that judges do not make law. But

as one of the great Scottish judges (Lord Reid) put it in

1972: "There was a time when it was thought almost indecent

to suggest that judges make law, they only declare it, but

we do not believe in fairy tales any more."



That is important. When we start to talk about the vital

decisions that shape the law we must tell ourselves the

truth, not fairy tales.



ISUGGEST that we begin by recognising one last point about

where the law comes from, though it really is the most

important. Behind the legislators, doing it openly, and the

judges, doing it unobtrusively, there are legions of people

and institutions pressing for society to be shaped according

to their beliefs and prejudices. Traditionally, the greatest

pressures have come from religious groups, but recently we

have seen the growth of other pressure groups, from the

well-organised, such as Greenpeace or Friends of the Earth,

to near anarchical lobbies, from Swampy to peace camps, from

Cardinals to bus operators, not to mention the professional

lobbyists who have come in for so much attention in recent

months. The battle over the repeal of Section 28 provides a

splendid example of different groups struggling to shape the

law.



Just think back for a moment to the long period between John

Knox and the arrival of Victorian 'morality' in the 19th

Century. For centuries the law as it affected ordinary lives

was pervaded by a Puritanical perspective on morality.

Moralists, clerics, politicians waxed long and passionately

about observing the Sabbath or about sexual morality; but it

was left to Wilberforce, Dickens and Marx to suggest that

our consciences should be stirred less by sins of the flesh

and perhaps more by the wickedness of slavery, poverty and

economic exploitation. Then Emmeline Pankhurst and Keir

Hardie showed us roads to true democracy.



As a result, the law began to be consciously shaped by the

new thinking, so that instead of saving our souls, whether

we liked it or not, it began to concern itself with how we

lived our lives. Keeping the Sabbath day holy took second

place to keeping the factory floor safe. More recently,

since the horrors of the Second World War, and especially

the Holocaust, there has been an overwhelming movement

towards building a law that gives everyone rights -

especially rights against the State and the bureaucracies -

and the machinery for vindicating those rights, with the aim

of winning individual freedom of choice.



Of course, we are only at the start of a very long road:

legal and political rights under the law are only the

precursors of the economic and social rights which are

necessary if people are to live fulfilling lives. But by

2000, we can say with some confidence, adapting a famous

lawyer's aphorism, that the movement of the progressive

societies is now a movement from enforcing morals to

creating rights? At least in the Western democracies, the

right to worship your God has replaced the duty to worship

the God prescribed by the State.



So this is the central point, that the law is the prize in

the battle between the enforcement by the powerful of moral,

social and economic constraints, on the one hand, and the

widening of individual freedom, on the other.



But if the judges, even collectively, are such important

players in the whole business of shaping our lives by making

and interpreting the law, then the public surely needs to

know more about them, who appoints them, what attitudes they

are likely to bring to exercising their new human rights

jurisdiction and powers, and what they know about crime and

punishment.



The formalities of appointing judges are well understood.

The Scotland Act provides that the two top judges in

Scotland, the Lord President and the Lord Justice Clerk, are

to be appointed by the monarch on the recommendation of the

Prime Minister. The First Minister, however, 'nominates' the

person to be recommended; so the real power lies with the

First Minister, subject to the Prime Minister's right of

veto. The First Minister in turn will be advised by the Lord

Advocate. When it comes to the appointment of High Court

judges and sheriffs the First Minister effectively chooses

whom to appoint but he must consult the most senior judge,

the Lord President.



The Lord Advocate has no statutory role in the process, but

when the House of Lords was considering this legislation the

government indicated that the Lord Advocate would continue

to perform his traditional role and, after consulting the

Lord President, effectively nominate the new judge - subject

to the First Minister's veto. Effectively, therefore, two

politicians in the Scottish Executive decide who are to be

appointed judges. The criteria to be applied are not

disclosed and are not really known. Up until now, those

appointed have continued to come from the membership of the

Faculty of Advocates, but some changes in practice have

emerged fairly recently, with the appointment of three

persons from the shrieval bench.



The future is entirely uncertain, not least because the role

of the First Minister, and even of the Lord Advocate, might

be reconsidered in the light of the European Convention on

Human Rights and because the appointment of judges has begun

to interest the MSPs. The Scottish parliament has power

under the Scotland Act to impose requirements upon the First

Minister in relation to his control over the appointment of

judges. It can only be a matter of time before they interest

themselves more actively in this matter. (This is another

example of devolution going further than was intended in

1978. Then the appointment of judges was not a devolved

matter.)



ISHOULD say that thetraditional and best positive

qualification for choosing a judge is having the experience

of studying and applying the law daily, in a way that can be

done only by pursuing a substantial and broad practice in

the courts. For it is in conducting litigation on a full-

time basis that the lawyer develops and tests his skills. He

has to research the law relentlessly in order to keep up to

date to be able to exercise an informed judgment as to what

will and what will not work. So when he (or she) sits on the

bench he stands out as one who has been through the mill.



Yet, if there is one area of practice in which judges come

to the bench with a restricted experience, it is in crime

and sentencing (about which I must say more later). This may

surprise many, for everyone knows that the judges' role in

criminal justice is the most high profile work that they do.

Fortunately, this weakness is now being addressed. Excellent

judicial training has been introduced, and the judges meet

to thrash out policy issues, for example, those bearing upon

sentencing. There has been an increasing recognition of the

need for judges to explain their decisions, and how they

have reached them, in a way that non-lawyers can understand.



However complex the law may be, the way in which it applies

in real cases has to be made as transparent as possible. If

judges do not do the explaining they can hardly complain of

others attempting to do so and getting it wrong.



One feature of the judges' task may serve to illustrate the

need for a better understanding of how judges work. It is

sometimes thought that judges and police officers are, or

should be, shoulder to shoulder in the fight against crime.

That is an entirely false notion. The police have the task

of trying to prevent crime and, in co-operation with the

fiscal service, trying to bring malefactors to court. The

court has the wholly different task of trying to ensure that

those whom the criminal authorities accuse get a fair and

civilised trial. The perspective of the judge is determined

by the principle that the prosecution must prove the guilt

of an accused beyond all reasonable doubt. The perspective

of the policeman is commonly affected by the moral certainty

of guilt that derives from his close knowledge of the whole

background, even if he cannot prove by acceptable evidence

what he believes he 'knows'.



It is not altogether surprising that there have been

instances where policemen have embellished the evidence to

make sure that the court comes to the right result. But, for

the judge, at least while the trial is unfinished, the

police officer is just a witness, not a partner, in some

crusade against the ungodly. The judiciary, like the

procurator-fiscal service, must keep its distance from the

police. The judge would be failing in his duty if he gave

the police special certification as witnesses of

unimpeachable character and credibility. Passing judgment on

the reliability of police evidence is usually a matter for

the jury. The chances are that they have more first-hand

experience of policemen in real world situations than most

judges could expect to have.



To a far greater extent than I suspect most people

appreciate the courts are the ultimate regulators of the

police. It is the job of the courts to make them stick to

the rules. If the rules become too burdensome and

restrictive - which they sometimes do - then it is to the

legislators, not the judges, that the police must turn to

seek to be liberated from irksome and unnecessary rules and

regulations that inhibit their effectiveness in the fight

against crime.



One last point about the judges in the 21st century. As a

result of recent legislation by parliament, the judges have

been given an entirely new jurisdiction. They can in effect

overrule the elected parliament. For there has been

introduced into our law a revolutionary instrument of

change, a Trojan Horse. It goes by the splendidly attractive

name of The European Convention on Human Rights. The new

powers given to judges may require us to look again at the

qualifications, experience and training required of our

judges.









Photo caption:

Lord McCluskey keeps in touch from his private study. The

views of the former Solicitor-General have been shaped by 50

years in the law, 23 years in the Lords and 15 years on the

bench of the High Court. Photograph: Robert Perry