It is possible that the first minister just needs a holiday

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Comment by Kenneth Roy

On Newsnight Scotland, in the middle of the Lord you-know-who fracas, the original dust-up before it was re-ignited earlier this week, Ken MacDonald wound up a film report with a casual but devastating payoff. I cannot remember his exact words before it, but they were to the effect that Hope v Salmond was no contest. ‘Who elected Lord Hope?’, he asked with a final rhetorical flourish.

If I have a soft spot for that able correspondent, it is partly because I gave him his first job in broadcasting. But, on this one, Ken is way off the mark, as he himself must know. No one elected Lord Hope and the reason no one elected him is that the deputy presidency of the UK Supreme Court and all other judicial appointments are unelected. Hey, it’s that simple.

I hope that Ken was not pandering, as people do these days, to the legendary absolute majority and its testosterone qualities, achieved (dull fact coming up) with the support of 22.6% of the Scottish electorate. I hope, too, he was not implicitly suggesting that it would be a good thing if judges were elected.

Just in case he was, it would be worth considering for a few nightmarish moments the consequences of an elected judiciary, forced to submit to the whim of the ungrateful public every four years. The humanitarian judges who subscribe to the view that, wherever possible, justice should be tempered with mercy would be out on their ears. Any judge who, on an impeccable point of law, was fool enough to direct a jury to acquit in a high-profile case which had aroused atavistic emotions could say goodbye to his deposit.

We would be left with the modern equivalents of the sadistic Lord Goddard, a bench of old brutes playing to the baying gallery of public opinion. Soon there would be a law re-introducing the flogging of delinquent youths – rushed through in time for the start of the football season. If flogging them failed to produce the desired results, the law could be repealed by popular demand and a new and more bracing expedient – say public stoning – rushed through in time for the start of the next football season.

It is easy to imagine the lip-smacking with which the suburban zealots who edit the tabloid press would assist the democratic process. The ‘wimps of the bench’ would be named and shamed to cries of ‘Off with their wigs’. Do I exaggerate? Only slightly.

But at least Ken MacDonald would no longer have to ask: ‘Who elected Lord Hope?’. We would know only too well. We would be witnessing the collapse of civilised values.

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Scientists, doctors, artists, writers, teachers, administrators – and, yes, judges – somehow manage to make a beneficial impact on society without going to what Mr Salmond calls ‘the bother of being elected’.
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In the last few weeks, the Ken question has occasionally returned to haunt me. It would be reassuring to assume – I did in the end assume – that it was an aberration, perhaps even a joke, and that we would hear no more of it. But now it appears that there is at least one fairly regular viewer of Newsnight Scotland who is running with it, and it happens to be the first minister. Oops. The Ken MacDonald question may have legs after all: the sturdy pair belonging to El Presidente Salmondo.

El P told the heroine of the week, Mandy Rhodes of Holyrood magazine, in relation to his continuing issues with Lord you-know-who:

At least I went to the bother of being elected – it may be an inconvenience but none the less has to count for something.

Of course it counts for something. In his constituency of Aberdeenshire East, 52.4% of the electorate went to the bother of voting and, of those who did, the majority went to the bother of voting for Mr Salmond. And this is not inconvenient in the slightest. No one is calling into question the legitimacy of the parliamentary democracy which has given the first minister his overall majority.

If Mr Salmond would relax, go play a few rounds of golf – I recommend Machrihanish – resist the further temptation to give interviews to people like Mandy Rhodes and cease obsessing about those two four-letter words, L… H…, he would return to Edinburgh restored to his avuncular and reasonable self. He needs a holiday. Of that I feel sure. I am rather looking forward to one myself. It must be the time of year.

And yet – the sleep-destroying fear persists – the fear that Ken MacDonald has started something, that the Ken MacDonald Question will come to have the same mythical status as the West Lothian Question but without the latter’s remorseless logic. Since it is there, and won’t go away, I might as well put in a word for all the unelected people of this world.

Most of the best people I have met were not elected by anybody. Ena Lamont Stewart did not require a popular mandate to write ‘Men Should Weep’; she just sat down at her typewriter and got on with it. James Black was not elected to invent the betablocker and save countless lives all over the world; he would have been no good at writing manifestos. Although he tried, Jimmy Reid never won a parliamentary seat, yet his influence on the life of Scotland will still be felt many years from now. I have never met Harry Burns, the medical man who was knighted last week, but I have heard enough about him, and read enough of his work, to know that this unelected public servant is one of the most thoughtful people we have.

Scientists, doctors, artists, writers, teachers, administrators – and, yes, judges – somehow manage to make a beneficial impact on society without going to what Mr Salmond calls ‘the bother of being elected’.

Is Scotland really moving towards a new populism in which only the elected will be valued?

Or does Mr Salmond just need a break?

Kenneth Roy is editor of the Scottish Review