Lord Carloway explains separation of powers to politicians

The Equalities, Human Rights and Civil Justice Committee of the Parliament, which has a Labour, Conservative and two SNP members, visited the Court of Session on 16 April.

The Scottish government has in recent times attempted to control the legal profession with its much-maligned regulation plans. It had also aspired to be able to dismiss judges from its planned Sexual Offences Court, in which it would conduct jurlyess trials, which have now been delayed for years and which, if run, would include lay membership – as a concession to detractors.

The judiciary has been attacked from all political quarters over the past decade by people for whom the courts are instrumental to some end. In November 2016, The Daily Mail famously referred to judges in the English High Court as ‘Enemies of the People’ for ruling parliamentary consent was necessary for Brexit. In October 2021, a Scottish Green MSP said a ruling of the Supreme Court marked a “dark day for democracy in the UK” because the bill under consideration was ultra vires of the Scotland Act.

Lord Carloway told the committee that the judiciary “must be able carry out its function free from any external influences, pressures, inducements, threats or other forms of interference”.

The judiciary, he said, is “entitled to respect” for its role, which it has held since 1532.

“It ought not to be placed under pressure to perform its functions in a particular way. There are famous examples of this in legal history. The Stuart kings, Charles I and Charles II, were accustomed to writing to the Scottish courts to give them directions on the outcome of particular cases.

“This persisted until the Claim of Right in 1689. It is out of that history that we have emerged with what most agree is, as generality, a mature, democratic country with checks and balances that are designed to protect everyone from tyranny, from whatever source. Sometimes, in that ostensibly comfortable state, we forget how important this all is; until we see the, often rapid, degeneration of society in other parts of the world.”

Conversely, the other parts of the state must be allowed to perform their functions without interference from the judiciary.

Lord Carloway said: “The relevant legislature, be it Parliament or local council, turns that policy into law. The judiciary interprets and applies that law. It should not innovate upon it nor should it seek to misinterpret it.”

The lord president then encouraged the committee to “spend your evenings on the SCTS website catching up on all of the appeal hearings that you may have missed”, which is “cheaper”, and “sometimes more exciting, than Netflix!”