It's impossible to draw a similar diagram of the UK system, because it ain't so neat as that... but you get the picture. Not that I drew this one; it was stolen, as usual...
If we make an assumption that the Americans and the Scots eventually got their man, we know for sure that there were other people involved who have never been brought to justice. To obsess so much over the only person we can hold responsible is understandable, but it does mean we narrow our focus a little too much. If we were really that upset over it, then we would never have normalised relations with Libya. But that’s Western hypocrisy for you.
But what’s fascinating me most is the way such a difficult judicial decision is needlessly politicised. The SNP, newbies to running national administrations, have had their first real taste of being between a rock and a hard place. And overall, I think they handled their responsibility extremely well and came to the right conclusion.
My main worry is why on Earth does a political figure take this kind of decision? Yes – there is an argument that at least we could hold them accountable by doing so. But following that logic we would end up with the election of all judiciary like in the USA. That would be totally unacceptable. I may be a democrat, but not that democratic that we would see the judiciary infected with populism and horrendous party politicking.
No, our justice system is very different. It is based on different principles of impartiality and strict adherence to statute, with judges knowing their place beneath the overriding power of Parliament. That balance has shifted in recent years due to the Human Rights Act, but broadly speaking judges cannot strike down a law.
The Home Secretary of the UK no longer has the power to adjust sentencing. We got rid of that because it was too easy for him/her to meddle with them for political purpose. I don’t want my politicians having anything to do with trials, juries, barristers – nothing at all to do with judging. They are just too susceptible to the wonders of the opinion poll.
That power instead resides with the Attorney General, who can appeal that a sentence is “unduly lenient” (but never that it is “excessive” – oh no!). Alas, the Attorney General is still a political appointee, serving at the patronage of the Prime Minister. Not good enough, but at least the decision is out of their hands.
So it should be the case in Scotland. The decision should have been either been made by the Lord Advocate – a political appointee, in part, but one with security of tenure and no “constituency” to impress – or by some other element of the judiciary.
The principle of the separation of powers is so important to me and to many other true liberal democrats (small ‘l’ and small ‘d’ in this case). It is only by enforcing that and strengthening it at every opportunity with rigorous checks and balances that we can protect our way of life, preserve our constitution and values over generations, and ensure the maximum freedom for all.
Unfortunately, this case fell some way short of the standards necessary to do that.
And the irony of it all? That the Americans, biggest fans of the separation of powers, had the high cheek to lobby the Scottish Justice Secretary to get the decision in their favour, when they wouldn’t dream of lobbying their very own Supreme Court.
The Futility Monster 