Faculty protests MSP’s attack on the Judiciary

To:

Karen Adam MSP, Convenor of the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee

Maggie Chapman MSP, Deputy Convenor of the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee

 

Dear Ms Adam and Ms Chapman

I write on behalf of the Office Bearers of the Faculty of Advocates, all of whom have agreed to what follows. As you know, Faculty is the representative body of the Bar in Scotland. It does not get involved in politics. But for 500 years part of its role has been the protection and advancement of the Rule of Law. Fundamental thereto, and in line with both the Latimer Principles and the Goa Declaration on preserving and strengthening the independence of the Judiciary, is what Faculty considers to be its duty to speak out in defence of the judiciary when it comes under attack: especially given the constitutional restrictions which prevent the judiciary from defending itself publicly.

In light of the above, it was with considerable concern and dismay that we read reports of Ms Chapman MSP addressing a public gathering in the wake of the recent ruling in For Women Scotland v Scottish Ministers. In video footage which is circulating widely online, she is seen to condemn what she claims is the “bigotry, prejudice and hatred that we see coming from the Supreme Court”.

These are appalling comments to come from any elected politician. They are all the worse when they come from someone who holds the post of Deputy Convenor of the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee.

It really should not require to be said, but the Supreme Court – indeed, all judges – are in post to apply the law. They do not take sides. They decide without fear or favour, consistently with the judicial oath. For Ms Chapman to claim that they were swayed by “bigotry, prejudice and hatred” is outrageous. We are talking about the apex court of these islands, in this instance made up of a bench which included two of Scotland’s finest legal minds, as well as two women. No sensible person could read their dispassionate analysis and conclude that they were swayed by such matters.

The atmosphere following the ruling in FWS is toxic. Not only do comments such as these – which as they stem from an elected politician and Deputy Convenor many will take seriously – fail to respect the Rule of Law; not only do they constitute an egregious breach of Ms Chapman’s duties to uphold the continued independence of the judiciary (s.1(1)(a) of the Judiciary and Courts (Scotland) Act 2008); but they go further than that, and create a risk of danger to the Members of the Court themselves. This behaviour is irresponsible and reprehensible.

Faculty has previously required to speak out in light of political attacks on the judiciary and legal profession. It did so when the Court of Appeal was, in light of its ruling in the Brexit case, described as “enemies of the people”. It did so when the previous UK Conservative government repeatedly attacked so-called “activist” lawyers. It did so very recently, in support of the American Bar Association in the wake of attacks on the judiciary in the US. We are absolutely certain that Ms Chapman agreed with Faculty’s stance on those occasions. This is no different. Indeed, in attributing such emotive descriptions as “bigotry, prejudice and hatred” to the judges of the Supreme Court, Ms Chapman’s attack is far worse.

In these circumstances, we respectfully request Ms Chapman to reflect on her words, and whether they allow her to properly discharge her responsibilities as Deputy Convenor in line with the impartiality requirements of the Guidance on Committees issued by the Scottish Parliament. As to the former, we suggest that a fulsome and swift apology is warranted. As to the latter, and notwithstanding that the requirements apply only whilst acting in the capacity of Convenor, we suggest that her comments are not compatible with her role as Deputy Convenor, or, arguably, her continued membership of the Committee. In line with our own role, however, we leave that matter to Ms Adam and her colleagues on the Committee. In addition to the suggested apology, and whatever action is taken by Ms Adam or her colleagues relative to Ms Chapman’s position on the Committee, we suggest that, in order to restore credibility in that Committee, Ms Adam should speak out publicly in defence of the Court and of the Rule of Law.

 Faculty very much regrets having to write this letter. However, Ms Chapman’s words have left it with no choice. Her behaviour in this instance is utterly beyond the pale.

 We look forward to your considered reply in early course.

 

Roddy Dunlop KC, Dean of the Faculty of Advocates