THE LAW LAID BARE: LORD McCLUSKEY'S VERDICT

Part 1: Ask yourselves the awkward question: Why do you get a peerage if
your family sells an intoxicating drug like whisky, but the jail if you
grow cannabis and sell it to your friends?

DOES the law matter? I mean,who cares - apart from those directly involved
- - about the thousands of cases that daily get an airing in court? Few hit
the newspapers, and, of those that do, most sound boring and tedious, not
to mention that the result usually seems to be so obviously right, or so
obviously wrong that you marvel enviously that people get paid fat salaries
to sit day after day listening to devious lawyers droning on, at our
expense, incidentally. "And as for yon bloody policeman wot knocked down
that nice Sheena wotsername. Twenty mile an hour? You must be joking! And
don't even mention that General Pinnochio."

Wait a moment. This is beginning to sound like the monologue of a London
taxi driver with dyspepsia and a shrew to go home to. So let's start again.

Does the law matter? Of course it does. Just think where you'd be without
it. You couldn't buy or sell a house without the law to guarantee the deal.
You couldn't get something on hire purchase, or credit, without the law -
however invisibly - providing a dependable foundation for the simplest
transaction. You couldn't get married, or divorced, or pregnant, without
the law coming into play to impose upon you duties, rights and binding
responsibilities that you've probably never even thought of.

Do you have any insurance policies? Motor insurance, perhaps? Health
insurance? Are you in employment? Are you contributing to a retirement
pension? Have you sent your jacket to the dry cleaners after that
unfortunate incident at Jimmy's wedding? Answer yes to any of these or a
thousand other everyday questions and you begin to realise that the law is
as pervasive as the midges on Mull. And we still haven't even mentioned
crime. So, yes, it matters. The law is the framework that holds a civilised
society together. Remove it or neglect it and you end up with Sierra Leone
or Beirut, Rwanda or much of Russia, where the mob or the gun rules and
everything falls apart.

If you are not convinced that the law really matters, please turn back to
the sports pages and resume your ruminations on yesterday's Six Nations
rugby and today's Rangers/Hibs game.

When you begin to think about it, you're bound to ask who made the laws the
way they are, and why. Why do you get a peerage if your family manufactures
and sells vast quantities of an intoxicating drug like whisky, but the jail
if you grow cannabis and sell it to your friends? Why do women prostitutes
get fined for trying to sell their bodies for sex, while men don't get
fined for trying to buy them? Why did adultery used to be a crime, and why
is it not one now? Who decided that if an unmarried couple split up the
man's chances of getting custody of the children should be so much poorer
that the woman's? Look abroad. How come that in some countries women are
required by law to wear the veil? Why can't citizens buy alcohol in Saudi
while we can take it home by the trolleyload from the supermarket?

You don't have to get answers to these questions to realise that in
different places and at different times somebody has answered them, and
written the answers into law. The more you think about it, the more obvious
it is that somebody out there has been making all these choices about how
we live our lives. So who was it, and were we asked what we wanted? And, if
not, why not?

This brings us to the heart of the matter. For if someone is choosing what
we can wear, what we can drink, what we can do and what we can think then
we had better find out who it is. It can hardly be those MSPs up on the
Mound; they've only been at it for six months. So what about our
Westminster MPs - of course, it must be them. But wait a moment, doesn't
much of our law come from centuries of accumulating legal precedents? Who
did the accumulating? Who made that body of law? Who, for example, defined
the crime of murder? Who decided that euthanasia was murder but abortion
was not? Who decided that criminals should be given a right of silence? Who
decided, not all that long ago, that to form a trade union was to engage in
a legal conspiracy? Who constructed the whole edifice that we call the
Common Law, that agglomeration of rights and duties, which, by the way, we
are deemed to know? For, as every schoolchild knows, ignorance of the law
is no excuse.

Well, the answer to that is no mystery. Generations of judges constructed
most of that edifice, one brick at a time. It used to be thought that
judges do not make law. But as one of the great Scottish judges (Lord Reid)
put it in 1972: "There was a time when it was thought almost indecent to
suggest that judges make law, they only declare it, but we do not believe
in fairy tales any more."

That is important. When we start to talk about the vital decisions that
shape the law we must tell ourselves the truth, not fairy tales.

ISUGGEST that we begin by recognising one last point about where the law
comes from, though it really is the most important. Behind the legislators,
doing it openly, and the judges, doing it unobtrusively, there are legions
of people and institutions pressing for society to be shaped according to
their beliefs and prejudices. Traditionally, the greatest pressures have
come from religious groups, but recently we have seen the growth of other
pressure groups, from the well-organised, such as Greenpeace or Friends of
the Earth, to near anarchical lobbies, from Swampy to peace camps, from
Cardinals to bus operators, not to mention the professional lobbyists who
have come in for so much attention in recent months. The battle over the
repeal of Section 28 provides a splendid example of different groups
struggling to shape the law.

Just think back for a moment to the long period between John Knox and the
arrival of Victorian 'morality' in the 19th Century. For centuries the law
as it affected ordinary lives was pervaded by a Puritanical perspective on
morality. Moralists, clerics, politicians waxed long and passionately about
observing the Sabbath or about sexual morality; but it was left to
Wilberforce, Dickens and Marx to suggest that our consciences should be
stirred less by sins of the flesh and perhaps more by the wickedness of
slavery, poverty and economic exploitation. Then Emmeline Pankhurst and
Keir Hardie showed us roads to true democracy.

As a result, the law began to be consciously shaped by the new thinking, so
that instead of saving our souls, whether we liked it or not, it began to
concern itself with how we lived our lives. Keeping the Sabbath day holy
took second place to keeping the factory floor safe. More recently, since
the horrors of the Second World War, and especially the Holocaust, there
has been an overwhelming movement towards building a law that gives
everyone rights - especially rights against the State and the bureaucracies
- - and the machinery for vindicating those rights, with the aim of winning
individual freedom of choice.

Of course, we are only at the start of a very long road: legal and
political rights under the law are only the precursors of the economic and
social rights which are necessary if people are to live fulfilling lives.
But by 2000, we can say with some confidence, adapting a famous lawyer's
aphorism, that the movement of the progressive societies is now a movement
from enforcing morals to creating rights? At least in the Western
democracies, the right to worship your God has replaced the duty to worship
the God prescribed by the State.

So this is the central point, that the law is the prize in the battle
between the enforcement by the powerful of moral, social and economic
constraints, on the one hand, and the widening of individual freedom, on
the other.

But if the judges, even collectively, are such important players in the
whole business of shaping our lives by making and interpreting the law,
then the public surely needs to know more about them, who appoints them,
what attitudes they are likely to bring to exercising their new human
rights jurisdiction and powers, and what they know about crime and
punishment.

The formalities of appointing judges are well understood. The Scotland Act
provides that the two top judges in Scotland, the Lord President and the
Lord Justice Clerk, are to be appointed by the monarch on the
recommendation of the Prime Minister. The First Minister, however,
'nominates' the person to be recommended; so the real power lies with the
First Minister, subject to the Prime Minister's right of veto. The First
Minister in turn will be advised by the Lord Advocate. When it comes to the
appointment of High Court judges and sheriffs the First Minister
effectively chooses whom to appoint but he must consult the most senior
judge, the Lord President.

The Lord Advocate has no statutory role in the process, but when the House
of Lords was considering this legislation the government indicated that the
Lord Advocate would continue to perform his traditional role and, after
consulting the Lord President, effectively nominate the new judge - subject
to the First Minister's veto. Effectively, therefore, two politicians in
the Scottish Executive decide who are to be appointed judges. The criteria
to be applied are not disclosed and are not really known. Up until now,
those appointed have continued to come from the membership of the Faculty
of Advocates, but some changes in practice have emerged fairly recently,
with the appointment of three persons from the shrieval bench.

The future is entirely uncertain, not least because the role of the First
Minister, and even of the Lord Advocate, might be reconsidered in the light
of the European Convention on Human Rights and because the appointment of
judges has begun to interest the MSPs. The Scottish parliament has power
under the Scotland Act to impose requirements upon the First Minister in
relation to his control over the appointment of judges. It can only be a
matter of time before they interest themselves more actively in this
matter. (This is another example of devolution going further than was
intended in 1978. Then the appointment of judges was not a devolved
matter.)

ISHOULD say that thetraditional and best positive qualification for
choosing a judge is having the experience of studying and applying the law
daily, in a way that can be done only by pursuing a substantial and broad
practice in the courts. For it is in conducting litigation on a full-time
basis that the lawyer develops and tests his skills. He has to research the
law relentlessly in order to keep up to date to be able to exercise an
informed judgment as to what will and what will not work. So when he (or
she) sits on the bench he stands out as one who has been through the mill.

Yet, if there is one area of practice in which judges come to the bench
with a restricted experience, it is in crime and sentencing (about which I
must say more later). This may surprise many, for everyone knows that the
judges' role in criminal justice is the most high profile work that they
do. Fortunately, this weakness is now being addressed. Excellent judicial
training has been introduced, and the judges meet to thrash out policy
issues, for example, those bearing upon sentencing. There has been an
increasing recognition of the need for judges to explain their decisions,
and how they have reached them, in a way that non-lawyers can understand.

However complex the law may be, the way in which it applies in real cases
has to be made as transparent as possible. If judges do not do the
explaining they can hardly complain of others attempting to do so and
getting it wrong.

One feature of the judges' task may serve to illustrate the need for a
better understanding of how judges work. It is sometimes thought that
judges and police officers are, or should be, shoulder to shoulder in the
fight against crime. That is an entirely false notion. The police have the
task of trying to prevent crime and, in co-operation with the fiscal
service, trying to bring malefactors to court. The court has the wholly
different task of trying to ensure that those whom the criminal authorities
accuse get a fair and civilised trial. The perspective of the judge is
determined by the principle that the prosecution must prove the guilt of an
accused beyond all reasonable doubt. The perspective of the policeman is
commonly affected by the moral certainty of guilt that derives from his
close knowledge of the whole background, even if he cannot prove by
acceptable evidence what he believes he 'knows'.

It is not altogether surprising that there have been instances where
policemen have embellished the evidence to make sure that the court comes
to the right result. But, for the judge, at least while the trial is
unfinished, the police officer is just a witness, not a partner, in some
crusade against the ungodly. The judiciary, like the procurator-fiscal
service, must keep its distance from the police. The judge would be failing
in his duty if he gave the police special certification as witnesses of
unimpeachable character and credibility. Passing judgment on the
reliability of police evidence is usually a matter for the jury. The
chances are that they have more first-hand experience of policemen in real
world situations than most judges could expect to have.

To a far greater extent than I suspect most people appreciate the courts
are the ultimate regulators of the police. It is the job of the courts to
make them stick to the rules. If the rules become too burdensome and
restrictive - which they sometimes do - then it is to the legislators, not
the judges, that the police must turn to seek to be liberated from irksome
and unnecessary rules and regulations that inhibit their effectiveness in
the fight against crime.

One last point about the judges in the 21st century. As a result of recent
legislation by parliament, the judges have been given an entirely new
jurisdiction. They can in effect overrule the elected parliament. For there
has been introduced into our law a revolutionary instrument of change, a
Trojan Horse. It goes by the splendidly attractive name of The European
Convention on Human Rights. The new powers given to judges may require us
to look again at the qualifications, experience and training required of
our judges.

Photo caption: Lord McCluskey keeps in touch from his private study. The
views of the former Solicitor-General have been shaped by 50 years in the
law, 23 years in the Lords and 15 years on the bench of the High Court.
Photograph: Robert Perry