The highly personal row between Alex Salmond and the Deputy President of the Supreme Court, Lord Hope, gets more astonishing by the week. Further evidence of the enmity between the Bench and Bute House has emerged in an interview given recently to the Holyrood magazine in which the First Minister accused the former Lord Justice General of Scotland, of allowing “some of the vilest people on the planet” to win compensation from the taxpayer. He suggested that Lord Hope was negligent in his previous role as Lord President of the Court of Session. You may recall, earlier in this 'war of the wigs', the Justice Secretary, Kenny MacAskill, accused the Supreme Court judges of “ambulance chasing” and claiming that the English judges on the Supreme Court learned what they know of Scots law from visits to the Edinburgh Festival.
M'learned Friends are giving as good as they get though. In an address to the Scottish Young Lawyers Association, Lord Hope declared that Scots law was under no threat, except perhaps from parochialism. “Pride in our own system is one thing; isolationism is quite another” he said, “We have much to lose if we were to raise the drawbridge and cut ourselves off from the outside world'. Lord Wallace of Tankerness, the Advocate General for Scotland, then waded in to the affray suggesting that the First Minister hadn't even bothered to read the human rights judgements in question. "A fundamental pillar of our society is the rule of law and the independence of the judiciary”, said the former Deputy First Minister. “Surely Scottish ministers are not telling the courts what to do?”
Heaven forfend! It used to be an offence under Scots law for anyone to criticise or “murmur” a judge. That legal remedy appears to have fallen into disuse, which is just as well because Mssrs Salmond and MacAskill might in sterner times have found themselves under lock and key. But the case of Hope v Salmond explodes one of the convenient fictions of our constitution: that the judicial system and the political system are totally separate and independent, and that judges are somehow above politics. They aren't of course, and never have been. Judges interpret – often in very political ways - laws made by the politicians. And there is always tension between the two, especially when obscure clauses in the Scotland Act 1998 appear to have turned the UK Supreme Court into the final court of appeal in Scottish criminal cases.
What angers politicians like Alex Salmond is that the consequences of Supreme Court rulings such as Cadder, which led to the collapse of some nine hundred Scottish prosecutions, are visited not on M'Learned friends, but on the poor bloody politicians. “They don't come chapping at Lord Hope's door”, he said ruefully. Where I slightly disagree with Alex Salmond is on the intensity of the political flak generated in Scotland by Supreme Court rulings. Given the enormity of the implications, Scottish public opinion took it remarkably well. Imagine how the Daily Mail would have reacted if the Human Rights Court in Strasbourg had started quashing murder convictions in England?. “Mad Euro judges to let British murderers loose....Is ANYONE safe in their home now that Europe has released nine hundred hardened criminals?....House prices crash because of loonie Euro big wigs” The Times of London would also have fulminated that it is intolerable for appeals in the highest court in the land to be over-ruled by a court in France. “How can any nation, with an ounce of self-respect, allow its legal system to be second-guessed by a foreign legal body?”. Tory politicians in Westminster would have been even more savage in their condemnation of the human rights judges than Alex Salmond.
The difference of course is that Strasbourg could not – in Alex Salmond's phrase – have “opened the cell doors|” for convicted English murderers in the way the UK Supreme Court apparently can in Scotland. Strasbourg has neither the will nor the authority to overturn individual rulings of the English courts, and would never have attempted so to do. As I understnd it, the euro judges would only have ruled that English law had an obligation to legislate to conform the the provisions of the Human Rights Convention which gives every defendant the right to a fair trial. Now, I admit that this is to grossly over-simplify complex legal issues.. But in the court of common sense, it seems to me glaringly obvious that subordinating rulings of Scots law to a UK court in this way was bound to cause a row, especially since there are a majority of English lawyers on the Supreme Court bench.
Moreover, it is naïve to think that the judges on the Supreme Court did so innocently. Perhaps, they are flexing their muscles in Scotland, the better to apply them in England. This is a very new legal authority, unsure of its powers, and eager to find how far its writ runs. They probably don't know if they have the power to quash convictions that have been upheld by the English high courts – it's unlikely that they do. But, like the poll tax, they try it on in Scotland first.
And it has to be said, that Scots law has been found wanting. The practice of interrogating suspects for six hours without a lawyer present, should have been tolerated in a civilised society. In the Fraser case, the prosecution withheld evidence vital to the defence – a clear violation of the right to a fair trial.. Slopping out should have been ended in Scottish jails a generation ago. Real questions have to be asked about the quality, if not the integrity of Scots law.
However, this doesn't mean that Alex Salmond is wrong in trying to defend Scotland's legal system. Whatever you think of Scots law, it has been independent for three hundred years, and make no mistake: if the UK Supreme Court acquires the right routinely to overturn Scottish Appeal Court rulings, that independence will have been extinguished. The Scottish legal establishment seems curiously reluctant to defend it's rights and privileges, which is why it has been left to the politicians to cause a stushie, as only politicians can..