The behaviour of the Cabinet Secretary for Justice, Kenny MacAskill MSP, in relation to the UK Supreme Court has been quite frankly disgusting of late and most certainly is not befitting of a man of his intellect and position.
Today I read about his latest outburst over the matter which can only be described as personal attacks against the Justices of the UK Supreme Court. I have written recently on the position of the UK Supreme Court in relation to Scots law and so will refrain from making the same points again. Here I intend on focusing more on the very fabric of democracy: the rule of law, the separation of powers and the need for the executive and legislature to be kept in check.
Having an independent judiciary that upholds the rule of law is vital for the survival of any democratic nation. Without it too much power lies in the hands of the executive and legislature and that can result in disastrous consequences for the citizens of a state. It is vital that the judiciary are able to hold the executive to account when upholding the rule of law.
Courts make decisions that parties to cases are unhappy with; it is part of the way in which justice operates. It is almost impossible for any Court to decide a case where both parties leave pleased with the result. There will always be one winner and one loser and the loser will feel as though they have been hard done by. What is quite irresponsible is for the Cabinet Secretary of Justice to make public comments which criticise judges personally. It is appropriate that the Executive criticises the judgment of the Court where it disagrees with it and explains the reasons why it disagrees with it, but when members of the Executive start making what appear to be personal attacks of judges in public then problems arise in relation to the relationship between the Judiciary and the Executive.
In any democracy it is essential that the Executive and the Judiciary have a good working relationship. That of course does not mean that the Executive is in a position to exert any influence over the Judiciary. The executive is subject to, like everyone else, the rule of law and on occasion the executive will lose before the Courts. The role of scrutinising the executive and holding them to account falls to the legislature and the judiciary. Given that in our system the executive forms part of the Legislature the only real independent scrutiny of the executive that exists comes from the judiciary. That does not detract from the work the legislature does in holding the executive to account, but it is an important point to note.
Anything that threatens the good working relationship between the Executive and the Judiciary is a danger to the very fabric of democracy and it is quite frankly disgusting behaviour for a senior member of the Executive to launch a personal attack on the justices of the Supreme Court.
There is nothing wrong with having a constitutional debate in the way that the current Scottish Government are seeking to do, but when that debate starts descending into personal criticism of members of the judiciary (either individually or collectively) then things have gone too far.
The Cabinet Secretary should be thoroughly ashamed of himself and should make a public apology to the justices of the UK Supreme Court. He should also refrain from making such attacks on the judicial arm of the State in the future, it simply is not fitting for a member of the Scottish Cabinet to act in such a way.