Separation of Powers

The McKie case, which I have commented on already here, continues to raise quite profound questions relating to the unfolding system (and quality) of democracy under which residents of Scotland are now, it seems, expected to live. On Wednesday this week, in the Scottish Parliament, two members of the Scottish Executive – Justice Minister Cathy Jamieson and the Lord Advocate Colin Boyd – both resisted calls from many quarters (inside and outside politics) for an independent judicial inquiry to be held into the circumstances surrounding the case of Ms McKie. Not only does their refusal to hold such an inquiry raise questions about the accountability of the Scottish Executive – accountability to which citizens in Scotland (and within any democracy worth the name) unquestionably have a fundamental right – it also points to the alarming limitation of the Scotland Act’s casual approach to the separation of powers, one that erroneously has imitated UK arrangements.

The arrangement whereby Scotland’s senior Law Officer is both a member of the Scottish Government and Head of the independent prosecuting service for Scotland has now been shown to be deeply unsatisfactory. It is one thing for the Lord Chancellor to be part of the UK Government under the terms of an unwritten constitution dating back many centuries, and quite another for a new ‘constitution’ (i.e. the Scotland Act) dating back only a few years not to explicitly provide for a separation of powers between Executive and Judiciary. Wednesday’s events in Holyrood have laid bare the flaws in importing this particular part of the Westminster system. Surely it is a no-brainer that one of the highest judicial offices in the land must be entirely independent of Government if the people of Scotland are to have confidence that it is free to investigate incompetence, malpractice or even possible criminal activity at whatever level in the justice system these might exist. Let’s hope that the pressure to have a proper judicial inquiry into the circumstances and procedures of this case continue to build until justice is both done, and is seen to be done.