Hamish Gobson’s diary: the view from across the Uisge
Saturday 09 December 2023
THE RULE OF LAW, Abolition of (Scotland) Bill has been slithering its inglorious way through the Fake Parliament recently, with almost everyone outside opposed to it for one simple reason: it will destroy the independence of the judiciary, and deprive Scotland of the benefits of the rule of law.
This is SNP policy. The question is: do the Humzoids understand what they are doing? My impression is they do not.
We have a parliament of 15-minute minds, for whom the sustained concentration required to understand concepts like the rule of law seems beyond them. Seaweed, by contrast, has a longer attention span. The green and red weeds have been able to concentrate on their own evolution for about 800 million years, and the brown weeds like kelp for 500 million. Perhaps, if given that length of time, the Scottish ministers might be able to master the subject of the rule of law. The trouble is we do not have that long, and the thought of having an SNP administration even just for one million years is unattractive to most free-minded Scots.
Of the three areas of life retained for specific exclusivity in Scotland at the Act of Union, the church is no longer relevant as its social service and control functions have been usurped by central government. The education system outside the private schools has been anglicised and crippled by bureaucracy. That leaves only the law, which has long been the most internationally prestigious aspect of governance in Scotland. This is what the Humzoids are now trying to destroy.
Nationalism needs to kill the nation’s traditions in order to establish pure and complete power over the atomised society that will be left. It is a failure waiting to happen. Does seaweed try to destroy the rock on which it grows? Not even kelp is that stupid.
Judicial independence was established in England in 1701 in the Act of Settlement, and was translated to Scotland after the Union. It had been one of the demands in the Claim of Right of 1689, so that was in line with the trend of national thinking. For more than three centuries, we have had the benefits of a judiciary that has been almost entirely free from corrupt government interference.
Now “Hate Crime” Humza wants to change that by introducing the entirely foreign – indeed Putin-like – concept of government control over the judiciary. He has already been seen haunting the Turkish hard-man, Recep Erdogan, trying to get him to sign his programme for COP28. How long before he flies to Moscow to try to get Mr Putin’s autograph too? An empty head needs role models.
The root of Putin’s power is his control over the judiciary. Russian criminal courts have a 98% conviction rate. On the civil side, an ex-Communist called Valery Zorkin has been Chairman of the Constitutional Court since the early 1990s. He writes like a Scottish government minister. Consider this paragraph on the rule of law from a book Professor Zorkin contributed to about fifteen years ago:
“The methodological aspects of the realisation of the principle of the rule of law in contemporary conditions is connected with the historicity of today’s world and the fact that it is impossible to use clichéd approaches to the realisation of the most important ideas of constitutionalism, among other ideas.”
Any thoughts on what that might mean? If a frond of thongweed from Great Todday had written such a sentence, you would dismiss it as an illustration of “the tangle o’ the isles.” But for the head of the highest court in a country which bombs hospitals, schools and old-age homes in a neighbouring country because it dislikes its government, suggests an almost SNP-level of egocentricity. Who needs to be clear to outsiders? The aggressive use of linguistic confusion is designed to reinforce insider status. That too is how Humza’s bummers operate.
The plan seems clear. You first outlaw meaningful speech by the public using a Hate Crime Act, then you convert government speech into Zorkinese, so that no-one outside the magic circle can understand what you are saying. That way you can completely destroy the principle of reciprocity in government, which means a genuine interchange, both upward and downwards, between those who make the laws and those who have to obey them. In other words, you destroy government by consent, which is the fundamental principle of Western constitutionalism.
It is that which enrages Erdogan, Putin, Xi, Kim Il-something et al. The very idea of having to respect the opinion of anyone else is tantamount to treason if you are a Great Leader and Teacher. However, the fact remains that without reciprocity the rule of law becomes rule by law – which is what all petty dictators want.
To see the 15-minute minds at work, you could do worse than watch a recent session of some Holyrood committee or other on the Rule of Law Abolition Bill. Perhaps conscious of their own unfitness for their role, the members appeared to be trying to seem clever and clued-up on the details of our legal system while they were questioning the Lady Justice Clerk, Lady Dorrian. The full “interchange” is here, and I particularly recommend watching minutes 32-35 when her Ladyship gives these “Army class” types a clear lecture on the rule of law issue, and how Hate Crime Humza plans to destroy it by abolishing judicial independence and the separation of powers in his new Bill. From the response, I suspect that none really understood what Lady Dorrian was saying.
For tribal Scotland, the parallel with other tribal systems is interesting. The United States is trying to improve the standard of its Indian courts by – wait for it! – entrenching judicial independence. That, of course, is what the SNP is trying to destroy in Scotland. This subject has been addressed by the recently deceased (and sadly missed) Associate Justice of the US Supreme Court, Sandra Day O’Connor. She wrote some years ago in the Tulsa Law Review
“One of the most important initiatives is the move to ensure judicial independence for tribal judges. Tribal courts are often subject to the complete control of the tribal councils, whose powers often include the ability to select and remove judges. Therefore, the courts may be perceived as a subordinate arm of the councils rather than as a separate and equal branch of government. The existence of such control is not conducive to neutral adjudication on the merits and can threaten the integrity of the tribal judiciary. Some tribes, like the Cheyenne River Sioux Tribe in South Dakota, have amended their constitutions to provide for formal separation of powers.” (p. 5 emphasis added)
This is exactly what our own Lady Justice Clerk was referring to in her address to the Something-or-other committee. But she might as well have been speaking in Todday Gaelic, or one of the Algonquian languages, from the blank looks on the faces of our 15-minute legislators. Their questions were revealing. Each took a trivial part of the matter and asked a detailed question. This is the refuge of the bewildered, or someone who cannot see the constitutional wood for the procedural trees. Not one of them properly engaged with either the rule of law or the separation of powers issues.
Either these parliamentary pygmies are determined to destroy Scots law or, more likely, they simply did not understand any of its traditions. Their focus seemed to be elsewhere. One of them, whose darting hands and pecking mouth reminded me of a sparrow at a bird table, talked of “the consumer experience”, as if that were a higher priority than justice. Did the Nazis at Nuremberg feel they had a “satisfactory consumer experience”? If not, should the powers that hanged them now apologise? The sparrow seemed incapable of elevating her attention above shopping. That is not the job of legislators who are paid nearly £70,000 a year plus expenses, pension, free iPad roaming, etc.
People like the sparrow should be removed from parliament and sent to remedial school where they study the basics of Scottish governance. On the syllabus will be the only book recently published which has the sub-title: Can the Rule of Law Survive in 21st Century Scotland?
The answer to that question is that, with this lot of “consumer experience” duds in parliament, it probably will not.
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Hamish Gobson lives on the Hebridean isle of Great Todday (Todaidh Mór) and features in Nicola Sturgeon: the Years of Ascent (1970-2007) – A Citizen’s Biography of a Driven Woman in a Drifting Parliament (Ian Mitchell, 2022) – available on Amazon and also reviewed here by Tom Gallagher.
Also written by Ian Mitchell is The Justice Factory (second edition): Can the Rule of Law Survive in Twenty-First Century Scotland? which considers the future of liberal democracy, taking Scotland as an example.
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