Michael Gray: It's healthy to criticise the rulings of judges

I wonder what the author of those words, Rabbie Burns, would have made of the ongoing furore over high court judges this past week?

It’s a sorry spectacle designed to encourage a collective gnashing of liberal teeth: the right-wing press, Ukip and hardcore Brexiteers misinterpreting a legal verdict to slam a trio of independent judges.

The language was unhinged. The courts were slammed, in the language Burns used for the reactionaries of his day, as “enemies of the people”. Yet all the high court has ensured is that the ancient dictatorial power of "royal prerogative" is binned for the more democratic route of parliamentary scrutiny on the clouded route to Brexit negotiations.

While I have no sympathy for those people in this case, I find the liberal astonishment over criticism of the courts equally unconvincing. It’s one of those cases that reveals widespread political hypocrisy. Those who welcome extra scrutiny of Brexit hail the judges for their independence. Yet liberals are the first in line to criticise judges who step out of line on topics that they care about.

Judicial sexism – particularly in rape cases – is venomously condemned by liberal campaigners and politicians, as it should be. No section of society, particularly those with the power of senior judges, can avoid scrutiny for the political importance of their actions.

There should of course be a separation of powers that means the government cannot bulldoze the rule of law and independence of the judiciary. But that should never be used as a pretext to act as if all legal judgements are inherently moral or unquestionable.

The sanctimony and defensiveness that believes prominent institutions cannot deal with passionate criticism is actually an insult to those institutions. I’ve met military dissidents who shared the vigorous internal debate on its ethics and purpose; teachers who expressed serious concerns of how schools operate and are managed; health professionals worried about the impacts of Tory NHS mismanagement.

Those closest to a profession, including the law, are often vividly aware of its shortcomings, contradictions and paths to necessary reform. Liberals acting as if public anger at the judiciary is treasonous enforces the belief that these messages from on high are sacrosanct.

The Salvesen v Riddell case is one such ongoing legal controversy that has attracted much criticism, including in this paper. The presiding judge sided with the property rights of the landowner, billionaire Alastair Salvesen, over the interests of tenant farmers.

The decision, to some critics, undermined Scottish parliamentary legislation, the Agricultural Holdings (Scotland) Act 2003, and arguably contributed to the timidity of this year’s Land Reform Act.

Broader attempts to reform Scotland’s approach to imprisonment have also raised problems. More than six years ago the Scottish Parliament supported a presumption against prison sentences of less than three months, a plan campaigners say is crucial to reforming prisons and reducing reoffending.

Yet thousands of such sentences are still being handed out over half a decade later. While the independent Scottish Sentencing Council was established by the government to reform sentencing, the process needs a firmer political push to succeed.

These are serious examples of two historic problems for the judiciary: ruling in favour of the powerful; and failed revolving-door criminalisation. Rather than shirk these challenges by cheering on all the big wigs, we should seek a fair and open debate. No-one is above the law, but those who enforce the law cannot be above criticism by all those committed to justice.

The more they speak the less we know

Every time the Tories try to explain Brexit, I’m left feeling more confused. Their explanations - sometimes lost in stupid riddles - are utterly confounding. What would it be like if they actually followed their Brexit principles in real life?

Theresa May jumps in a cab. “Where are you going?” asks the driver. “I am not going to give a running commentary on this journey,” replies the prime minister.

Brexit Secretary David Davis places his empty basked down at the checkout of a corner shop. He explains to the confused employee: “I have decided not to reveal my shopping list to strengthen my bargaining position.”

Foreign Secretary Boris Johnson’s divorce talks are not going well. He wants to keep the house, the children, a shared bank account, and the right to block his former partner’s freedom of movement. “I am aiming to achieve a special British deal,” he explains.

Trade secretary Liam Fox is arguing on the phone with his local takeaway. “They’ll come round to giving me free chips. I buy more from them than they do from me you see,” he bemoans.

@GrayInGlasgow is a journalist with CommonSpace.scot