Editorial: In praise of ‘separatism’

Graham Ogilvy

For ‘The Donald’ this was an unforgivable concession to the rule of law. Despite all of his obsequious toadying and enthusiastic implementation of some of Trump’s most reckless measures, Sessions had sealed his fate. After months of public humiliation by the President, his sacking may have come as something of a relief to the seventy-one-year-old.

Trump has, of course, by-passed Deputy Attorney General Rod Rosenstein to appoint a more compliant acting replacement in the shape of Matt Whitaker who is on record as wanting to starve the Mueller investigation of funds and narrow the terms of its remit.

This is the latest phase of the Trump coup which has already seen the appointment of the ultra-conservative Trump loyalist Brett Kavanaugh to associate justice of the Supreme Court. In saner times Kavanaugh’s extraordinary display of petulant and politicised aggression during his confirmation hearing would have been enough to disqualify him from being a justice of the peace.

Ever since Henry II wondered aloud, “Who will rid me of this troublesome priest?”, rulers and autocrats have sought to control the law and its officers – and to undermine the separation of powers.

Authoritarians in Poland and in Hungary are engaged in determined campaigns to purge the judiciary. In both countries, judges have stood up to the pressure so far and have obtained support from the EU. But the battle continues and the pressure on the judges is relentless.

It could never happen here, of course. Or could it? The rise of English nationalism wrapped in the colours of Brexit has already seen the scandalous traducing of High Court judges as ‘the enemies of the people’ by the Daily Mail and the more ominous failure of the then justice secretary Liz Truss to staunchly defend judicial independence when the heat was on. In Scotland, a former First Minister attacked the Supreme Court because he didn’t like its rulings and denounced sheriffs as ‘toffs’ despite his party having presided over their appointment for seven years.

It is now more important than ever that the independence of the judiciary and legal system is asserted and protected.

But in Scotland there is continuing concern that an anaemic and underfunded legal system is open to becoming too politically reactive and is incapable of robustly asserting its independence and resisting insidious creeping cronyism.

And it emerged this summer that Lord Advocate James Wolffe has attended almost 75 per cent of cabinet meetings. It is a figure far in excess of his predecessors Elish Angiolini and Frank Mulholland.

As long ago as 2006 the former Lord Advocate and Lord Chancellor Lord Mackay of Clashfern warned that the historical independence of the role of Lord Advocate was compromised by their attendance at cabinet meetings.

No-one has ever suggested that the present Lord Advocate, who serves both as legal adviser to the government and state prosecutor, is anything other than a model of integrity and decency. He is as far removed from an Andrey Vyshinsky character as it is possible to imagine.

But to protect the independence of his role it may be worth his reconsidering the advice of Lord Mackay and the late Lord McCluskey and absenting himself from the cabinet.

Readers of Scottish Legal News may differ on Scotland’s constitutional future but there is one independence and one ‘separatism’ we can unite around: the independence of the judiciary and the separation of powers.

Graham Ogilvy