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Inside Track Interview


a High Court judge did a newspaper article attacking a Prime Minister, for instance? “Now, I don’t mind and I believe in free


speech and it is Lord Hope’s human right to engage in free speech but then he should also accept that that applies to other people too. We have all these moans and groans about Kenny MacAskill exercising his right to freedom of speech but it is perfectly alright for a Lord of the Supreme Court to give his opinion about politicians and of the Scottish Parliament and its role. Tat is perfectly alright but don’t start a debate unless you are prepared to have a debate. “To take your point straight on, Mandy, the


right thing to do and what the Cabinet chose to do was not to have Lord Hope writing about me and me writing about Lord Hope but the right thing to do was to establish a review group of extraordinary prestige, even if I may say so, of more prestige even than Lord Hope, to look at the thing and come up with some recommendations that the Parliament can then debate. Tat takes it away from the personalities involved and recognises that there is an issue that needs to be properly debated and that the Parliament should have their say and then recommendations will then go to the Westminster Government which they may or may not put into the Scotland Act. Tat seems the correct way to approach things. “All I would say to Lord Hope is that I


probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it. “I am perfectly happy if Lord Hopes wishes


to exercise his freedom of speech and I hope he is happy with mine but at least I went to the bother of being elected, it may be an inconvenience but none the less has to count for something.” It’s rare to see Salmond in this temper.


Criticism usually emboldens him but above the fray. Tis row had needled him and is personal. It has even allowed him to indulge in what can only be seen as juvenile name calling. It’s unusual for the great orator, which he is, to descend into a slanging match but it reminds me of when he made his ‘spivs and speculators’ comments around the banking crisis and his ‘up the workers’ style support during the Johnny Walker dispute with Diageo. I thought then he was unusually wrong footed and deserved the criticism he


“Just as the Privy Council threw up unintended


consequences, so too is the Supreme Court”


got for it. Te very personal nature of the language now is worryingly similar. It is ill- advised, unstatesmanlike and dilutes what should be a serious-minded debate. Tis may feel like a new row but it is an


old issue. Lord Hope himself raised his own concerns in 2003 about the implication for Scots law of the Supreme Court even before it was established. Te Cadder case brought that into sharp focus but the fight began in earnest on 26 May with the Supreme Court’s ruling on Nat Fraser. Te London-based court upheld Fraser’s appeal in relation to evidence which had not been disclosed to his lawyers before his trial in 2003, after his legal team argued there had been a miscarriage of justice. Te debate that has ensued has so many


strands; legal, political, constitutional, human rights, sentiment, tradition; but it has become politicised, polarised and for many, blown out


of all proportion by the use of inflammatory and divisive language, mainly from Salmond and MacAskill. Why, I wonder, given Salmond’s acute antennae about how UK moves can impact on Scotland – remember the ‘deal in the desert’ – did he not move faster and with more grace on this one? “Tings are always more telling in practice


than they are in theory and at various times, and I was there in Westminster when the Scotland Act was going through, people did not realise the implications of what they were doing and of the unintended consequences. “But I don’t think that is quite true that


we did not respond quickly. It has been an abiding concern of ours, certainly since the Somerville judgement [relating to slopping out] and that was from the Privy Council [predecessor of the Supreme Court] but since then there has been a whole pattern of us saying what we are saying now. It has obviously become more acute because it has become entrenched within the Supreme Court and the Supreme Court, like any other body that is set up, seeks to accrue authority to itself and is now doing things that it was never intended to do. Just as the Privy Council threw up unintended consequences, so too is the Supreme Court. I also think it is possible that you need a succession of incidences of things that are happening before the extent of the encroachment and the vulnerability of the Parliament really hits home. “When the Human Rights Act was


stuck into the Scotland Act – as before when the Human Rights Bill was passed at Westminster, it wasn’t fully understood – and while it sounded like a nice idea that ‘oh, of course the Scottish Parliament will abide by Human Rights’ you don’t need to have it woven into your legislation. Te difference is, if you get an adverse ruling from the Strasbourg Court then the person concerned may get compensation although usually pretty limited, and basically, your legal system gets told that there has been some deficiency and you are told to look at it and see if you can sort it and that is all that happens and fair enough, that is a useful mechanism as a corrective to the 47 jurisdictions that go to Strasbourg and that is fine and I see no difficulty in that. In fact, Scotland tends to win Strasbourg cases like the one in February which was a big case about Scottish jury trials where the person’s lawyers probably made the mistake of going to Strasbourg, whereas if they had gone to the Supreme Court, they would probably have won. Te Strasbourg court found that the Scottish system was perfectly fair, it was different from elsewhere but that didn’t make it an infringement of Human Rights, so the Scottish experience of going to Strasbourg has been very good


13 June 2011 Holyrood 19


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