By a Newsnet reporter
A leading lawyer who last week launched an astonishing attack on the SNP, claiming the party was playing to tabloids and that Holyrood was damaging Scots law, has been criticised for including the attack within a “political agenda”.
Last week, leading lawyer Alistair Bonnington caused controversy after claiming that Holyrood had caused more damage to Scots law in thirteen years than Westminster had managed in 300.
In a vitriolic attack, former BBC Scotland lawyer Bonnington accused Scottish Ministers of altering law to suit tabloid headlines and of reducing the office of the Lord Advocate to that of a “Government spear carrier”. The outspoken legal expert also likened the SNP administration to a “totalitarian regime”.
Listing double jeopardy and corroboration as areas causing concern, Mr Bonnington claimed that Scots law was now no better than that practiced in third world countries and that the SNP Government were making piecemeal and damaging reactionary changes “all the time”.
Describing the recent anti-sectarian legislation as “a complete waste of time”, Bonnington accused the Scottish government of making the changes in order to go on TV and radio to say “aren’t we wonderful”.
However, Clare Connelly, who is a senior lecturer in Scots Law at Glasgow University said that Mr Bonnington had been “naïve” to mix political criticism with his concerns about Scots law.
Speaking on BBC Radio Scotland yesterday, the academic challenged her former colleague’s claim that there had been no political interference in Scots law prior to devolution.
“I think that’s a wee bit naïve to say that it only started since 1999, we know that historically Westminster also interfered in [Scots Law] independence by allowing for example Lord Advocates in the past to appoint deputy sheriffs and judges.” she said.
Ms Connely also referred to the UK Supreme Court, created by the last Labour Government at Westminster, which has now assumed the power to overturn criminal convictions obtained under Scots Law.
“We always did have an application to the privy council and to the European Court of Human Rights.”
Ms Connelly agreed that Mr Bonnington had raised some interesting and important points with respect to criminal law, and cited problems with the reduction in legal aid as an example. However she again challenged Mr Bonnington’s assertion that the situation was entirely exclusive to the Scottish government.
She said: “Westminster government isn’t pouring money into legal aid south of the border. If we didn’t have a devolved government, we would be subjected to the same scrutiny and the same cuts from Westminster.”
However the lecturer reserved her strongest criticism for the political nature of Mr Bonnington’s Times’ article.
“It’s not only about the law, it’s also political.” she said, and added:
“Hooking in with a kind of nationalist kind of debate I think is narrowing it too much because the history of interference with criminal law extends, not only to the nationalist government we have, but before the devolved government.
“And the idea that political interference is a recent thing is not accurate and not helpful to having a proper discussion and properly challenging these encroachments on the rights of the accused people that they’re going to affect.”
Ms Connelly commented on cases in England where accused people can be detained indefinitely without trial, and added:
“The idea that we don’t look both south of the border and at Scotland in this sort of debate I think is too narrow and too naïve. That’s why I say that this article that is written about the Scottish system has a serious and a heavy political slant to it.
“These issues are extremely important but they have to be debated properly [and] out-with political agenda.”
The attack by Alistair Bonnington followed a similar article published two weeks ago in the Telegraph, this time attacking Justice Minister Kenny MacAskill who Mr Bonnington claimed had blocked sensible measures on defamation that had been drafted by Westminster.
However, again Bonnington's interpretation of events was challenged, this time by legal expert Andrew Tickell. Writing on his blog, Mr Tickell disputed the former BBC Scotland lawyer's suggestion that the Scottish government had rejected measures contained in a Westminster inspired Bill “for no other reason than to be different from England”
In his Telegraph article Mr Bonnington, referring to the Defamation Bill currently making its way through Westminster, wrote:
“Scots media lawyers have noted with some disquiet that Kenny MacAskill, the Scottish Justice Minister has decided to reject almost all of the Bill’s liberalising provisions and include only one minor subsection.”
“In libel, Scots law is miles behind English law. That gap is about to become wider still courtesy of Mr MacAskill.”
Accusing the Scottish government of having an agenda, Mr Bonnington concluded: “MacAskill’s policy seems to be to deprive Scots law of these important liberalising and modernising measures – for no other reason than to be different from England.”
However, Mr Tickell poured scorn on the suggestion that the Scottish government had rejected proposals put to them by the Westminster government. The legal expert also rubbished Bonnington’s suggestion that the proposals had been blocked due to a narrow-nationalist agenda.
Mr Tickell pointed out that the legislation had been specifically drafted only ever to apply to England and Wales and that only a formal request from the Scottish government had led to amendments to the Bill allowing aspects to be incorporated into Scots Law.
Mr Tickell wrote: “One doesn’t have to be an honorary professor to see that asking for sections of the Bill to be extended to Scotland isn’t easily constructed as rejecting ‘the Bill’s liberalising provisions’ for the idle sake of being different from the English.”
He also quoted direct from the official Scottish government legislation containing the request from Mr MacAskill:
“… having considered extended privilege to scientific and academic activities, it was concluded that:
… the parity of protection across the UK was desirable given that much scientific and academic research is done collaboratively and without reference to national borders. Therefore, limiting these provisions to England and Wales only could potentially inhibit constructive and robust scientific and academic exchange.”
Mr Tickell added:
“I can find no evidence whatsoever suggesting that Westminster has ever proposed to Scottish ministers that the Defamation Bill should simultaneously reform Scottish and English law, nor that they ever enjoyed the formal opportunity to accept or reject such a proposal.” he wrote.
Hear Alistair Bonnington's latest criticisms of the SNP
Hear Clare Connelly responding
Alistair Bonnington on Newsnight Scotland