Editor’s note
Mandy Rhodes
mandy@holyrood.com
Roughed up justice Te Supreme Court debacle is quickly
descending into an undignified game of sticks and stones that is serving no one’s best interests and perplexing many about what lies at its heart. We are living in a fevered time of historic constitutional change but insults being ping-ponged from the letters pages of Scotland’s newspapers between m’learned members of the judiciary and our government ministers is showing up the country, or more particularly, the conduct of its leaders, in a very poor light. Tere are sound reasons why the UK Supreme Court exists and why Scotland is, in the reality of jurisprudence, the subordinate jurisdiction. Basically, the UK is the EU member state, not Scotland, and it is therefore responsible for the actions in Scotland as enshrined within the terms of the European Convention on Human Rights. Put simply, the UK Supreme Court is there to keep Scotland in line. An unintended consequence of that may well be that Scottish criminal cases with a human rights element have found their way there and that is something to be addressed. And clearly in these fevered and fast moving times of pending constitutional transformation and the promise of much more to come, there is an emotional if not a moral legitimacy to questioning the role of a UK court and its relationship with a Scotland now governed, for the second time, by a party committed to independence. Indeed in the current clime, all such institutional relationships need examination. Tis is a serious point and requires a serious-minded debate and the unseemly rammy that we are now embroiled in can surely not be what the First Minister intended when he and the Justice Secretary first launched their attack on the Supreme Court or the opinions of its judges following two particularly controversial cases; Cadder and Fraser, or can it? It has certainly plugged into a populist emotion about human rights and prisoners’ compensation claims but for Salmond to question, wholesale, the integrity or wisdom of the judges involved in the Supreme Court verges on arrogance. Being told you are wrong or indeed what to do by a higher power is never easy but having England dictate a change in the rules of
Scotland’s apparently independent and much lauded legal system is no doubt extremely unpalatable for the First Minister particularly at this time. But what should require calm, collected legal and political analysis has degenerated into a very personal battle indeed. And while the original intentions of the Scottish Government may have been correct, its execution has left much to be desired. Kenny MacAskill has allowed emotion to get the better of him and has resorted to name calling; questioning the calibre of the judges that sit in the Supreme Court, labelling the court itself an ‘ambulance chaser’ and threatening to withdraw Scotland’s funding. Tis is stuff of the playground and is not
“Put simply, the UK
Supreme Court is there to keep Scotland in line ”
befitting of a politician that in his last term of office took dignified responsibility for one of the most important legal decisions Scotland may ever face in freeing the Lockerbie bomber. Meanwhile, the First Minister has said the court was ‘second guessing’ Scotland’s justice system and had ‘no role’ to play here. He has also taken great exception to the opinions of Lord Hope of Craighead, one of the two Scottish judges to sit on the Supreme Court, and accused him of ‘routinely interfering in criminal appeals in Scotland’. Lord Hope has responded by saying that the First Minister had misunderstood both the law and the facts. And since then the whole of the Scottish judiciary appears to have swamped newspapers with claims and counter claims of political interference and wrongdoing. It’s messy but we should have seen this coming. Any threat to Scotland’s independent judicial system strikes right to the heart of what nationalism is all about; that distinctiveness that makes Scotland different, that gives us an identity and fosters the idea that we could be an independent nation once more. Te independence of the Scottish legal
system is enshrined in our history, traditions and sentiment and while Salmond may well be on a sticky wicket in arguing at this time that the UK Supreme Court should have no role in Scotland’s criminal justice system, he is shrewd enough to know that for his political opponents to argue otherwise would be seen as being anti-Scottish. Amid all the brouhaha, Salmond does have a serious point but he has acted with an atypical lack of grace over the issue. However, to claim that Scotland’s First Minister is simply motivated by an anti- English sentiment is to trivialise a matter which should interest us all. And what is in danger of being overlooked in this mêlee is the question of human rights. Being Scottish or emanating from Scotland does not make something right or above the law and I for one would hate to think that in the pursuit of all things Scottish we ignore human rights or believe in the infallibility of our legal system to the possibility of a miscarriage of justice. Scotland is not yet independent and in an effort to see Scotland take its place on the global stage, Salmond is in danger with this style of attack of making Scotland look very small and insular indeed.
Since last time... sold a house…bought a house…had a serious haircut for serious times and realised that actually, blondes did have more fun…
13 June 2011 Holyrood 3
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