Rulings by the new UK Supreme Court have not only infuriated First Minister Alex Salmond but have turned the law into a political battleground
The Scottish legal establishment, an unmistakable if rather fustian presence in Edinburgh’s Lawnmarket and the New Club of Edinburgh, is very jealous of its traditions and its independence. It is well known for its 15-member juries, its infamous ‘not proven’ verdict, and the fact that, in Scotland, children legally become adults at the age of 16.
But, recently, wigs have been set wagging over an extraordinary row between First Minister Alex Salmond and one of Scotland’s most senior and eminent legal personages, the former Lord President of the Court of Session, Lord Hope. Some say the very future of the Scottish legal system is in doubt.
Lord Hope sits on the new UK Supreme Court, which has delivered some fairly eye-popping judgements recently. The ‘Cadder’ ruling found that it was a violation of a suspect’s human rights to be interrogated for six hours without a solicitor. This has led to the collapse of 900 Scottish criminal prosecutions. That’s a lot of bad guys getting off scot-free.
Even more controversially, the UK Supreme Court ruled that convicted murderer Nat Fraser had not received a fair trial. It quashed his conviction, overturning a ruling by the Scottish Court of Criminal Appeal. The prosecution had withheld evidence that could have helped the defence case. Fraser is now to get a retrial.
These rulings have infuriated the first minister, who has attacked the ‘extreme’ judgements of the Supreme Court and personally criticised Lord Hope for ‘allowing some of the vilest people on the planet’ to get compensation. The row erupted in the Scottish Parliament at Question Time, when opposition leaders called on Salmond six times to apologise. Scottish Conservative leader Annabel Goldie said his remarks were ‘characterised by bile, intemperance, provocative personal insults and a sneering disregard for the independence of the judiciary and the rule of law’.
Now the curious thing here is that a lot of senior legal figures in Scotland actually support the first minister in his legal argument, if not his rhetoric.
The former Tory lord advocate, Lord Fraser, has said that Salmond was ‘spot on’ and that the UK Supreme Court should have no rights in matters of Scots criminal law. Others have warned that if the Supreme Court becomes a new court of appeal, overriding the Scottish Court of Criminal Appeal, then it could spell the end for the independent Scottish legal system, which has survived 300 years of the Act of Union.
Now, you might say that if there are violations of human rights happening in Scottish courts, then it is a good thing that we now have a Supreme Court to stop them. However, there is a serious anomaly here. The Supreme Court can only hear appeals in England when it is given leave to do so by the English High Court. In Scotland it can do so automatically under an obscure provision in the 1998 Scotland Act that made all actions of the Scottish Lord Advocate liable to review by the Supreme Court.
Until 2009, it was the European Court of Human Rights in Strasbourg that ruled on such violations, and it did not have the power to intervene in particular cases or quash murder convictions. It could only oblige the UK government to conform to the European Convention on Human Rights – as in the ruling on prisoners’ voting rights.
The matter has now been handed to a Supreme Court Review Group, under the distinguished Scottish judge, Lord McLuskey. But it has made the law a political battleground in a way no one expected when the Supreme Court was set up. It is likely that the Scotland Act will now have to be amended to reaffirm the primacy of Scots law in criminal matters. And members of the Supreme Court might have a view on that too.
Iain Macwhirter is political commentator on the Sunday Herald
