This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at https://www.theguardian.com/uk/2011/jun/01/alex-salmond-scotland-supreme-court
The article has changed 4 times. There is an RSS feed of changes available.
| Version 2 | Version 3 |
|---|---|
| Alex Salmond provokes fury with attack on UK supreme court Alex Salmond provokes fury with attack on UK supreme court | |
| (35 minutes later) | |
| Alex Salmond has provoked a furious row with senior legal figures after launching a series of attacks on the authority of the UK supreme court and the competence of its two Scottish judges. | Alex Salmond has provoked a furious row with senior legal figures after launching a series of attacks on the authority of the UK supreme court and the competence of its two Scottish judges. |
| The first minister and his justice secretary, Kenny MacAskill, accused the court of "intervening aggressively" in Scotland's independent legal system after it ruled that the Scottish system had twice breached the European convention on human rights in significant criminal cases. | The first minister and his justice secretary, Kenny MacAskill, accused the court of "intervening aggressively" in Scotland's independent legal system after it ruled that the Scottish system had twice breached the European convention on human rights in significant criminal cases. |
| The Scottish cabinet decided on Monday to set up an expert legal group to urgently consider how Salmond's government can block the supreme court from its oversight of criminal cases. | The Scottish cabinet decided on Monday to set up an expert legal group to urgently consider how Salmond's government can block the supreme court from its oversight of criminal cases. |
| At the same time, it emerged that MacAskill wants to stop paying Scotland's £478,000 annual share of the court's running costs. Earlier this week, he said most supreme court judges' only knowledge of Scotland was through attending the Edinburgh festival. | At the same time, it emerged that MacAskill wants to stop paying Scotland's £478,000 annual share of the court's running costs. Earlier this week, he said most supreme court judges' only knowledge of Scotland was through attending the Edinburgh festival. |
| Salmond intensified the row by criticising Scotland's senior judge on the supreme court, Lord Hope, who is widely regarded as one of Scotland's finest lawyers and is a former lord justice general of Scotland. He was an appeal judge in the House of Lords before becoming the deputy president of the supreme court. | Salmond intensified the row by criticising Scotland's senior judge on the supreme court, Lord Hope, who is widely regarded as one of Scotland's finest lawyers and is a former lord justice general of Scotland. He was an appeal judge in the House of Lords before becoming the deputy president of the supreme court. |
| Speaking on Newsnight Scotland on Tuesday, Salmond questioned why Hope had the individual authority, sitting as one of Scotland's two judges on the supreme court, to overrule decisions made by, in one case, seven Scottish appeal court judges. | Speaking on Newsnight Scotland on Tuesday, Salmond questioned why Hope had the individual authority, sitting as one of Scotland's two judges on the supreme court, to overrule decisions made by, in one case, seven Scottish appeal court judges. |
| "I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court," he said. | "I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court," he said. |
| "It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation." | "It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation." |
| Senior legal figures are dismayed by the personalisation of the dispute, largely because Salmond will be aware that one of the two Scottish judges on the supreme court, Lord Rodger, is extremely ill and is unable to defend himself. One senior legal figure said he "deplored" the SNP leader's personal attacks. | Senior legal figures are dismayed by the personalisation of the dispute, largely because Salmond will be aware that one of the two Scottish judges on the supreme court, Lord Rodger, is extremely ill and is unable to defend himself. One senior legal figure said he "deplored" the SNP leader's personal attacks. |
| Rodger, a former lord advocate and ex-lord justice general, was too unwell to deliver the latest supreme court decision relevant to Scotland. Two Scottish judges, Lord Clarke and Lord Reed, are being drafted in to hear Scottish cases in his absence. | Rodger, a former lord advocate and ex-lord justice general, was too unwell to deliver the latest supreme court decision relevant to Scotland. Two Scottish judges, Lord Clarke and Lord Reed, are being drafted in to hear Scottish cases in his absence. |
| There are doubts over whether he will be well enough to return to the supreme court. | There are doubts over whether he will be well enough to return to the supreme court. |
| Lord Wallace, the advocate general, the Scottish law officer for the UK government and a former Scottish justice minister, warned ministers in Edinburgh against trying to influence the court. He said Salmond and MacAskill had been using "unhelpful" rhetoric since the row erupted. | Lord Wallace, the advocate general, the Scottish law officer for the UK government and a former Scottish justice minister, warned ministers in Edinburgh against trying to influence the court. He said Salmond and MacAskill had been using "unhelpful" rhetoric since the row erupted. |
| He added: "As a lawyer I feel strongly that a fundamental pillar of our society is the rule of law and the independence of the judiciary is central to that. Surely Scottish ministers are not telling the courts what to do when they talk about pipers and tunes? I certainly hope not." | He added: "As a lawyer I feel strongly that a fundamental pillar of our society is the rule of law and the independence of the judiciary is central to that. Surely Scottish ministers are not telling the courts what to do when they talk about pipers and tunes? I certainly hope not." |
| The supreme court had only limited powers over Scottish criminal cases, purely covering human rights and EU law, he said. It only rarely heard Scottish cases: twice since it was set up. Its predecessor, the privy council, heard only 11 criminal appeals in 11 years. | The supreme court had only limited powers over Scottish criminal cases, purely covering human rights and EU law, he said. It only rarely heard Scottish cases: twice since it was set up. Its predecessor, the privy council, heard only 11 criminal appeals in 11 years. |
| Wallace said his own expert group had already looked at the supreme court's role in Scottish cases, and its unanimous defence of the court had been supported by the Law Society of Scotland, the Scottish Human Rights Commission and the Faculty of Advocates | Wallace said his own expert group had already looked at the supreme court's role in Scottish cases, and its unanimous defence of the court had been supported by the Law Society of Scotland, the Scottish Human Rights Commission and the Faculty of Advocates |
| "Why should Scots not have their human rights protected in the same way as people in the rest of the UK? What no one has yet explained to me is why the Scottish government are suggesting that Scots should have to go straight to the court in Strasbourg where there are no Scottish judges and a 140,000 backlog of applications," Wallace added. | "Why should Scots not have their human rights protected in the same way as people in the rest of the UK? What no one has yet explained to me is why the Scottish government are suggesting that Scots should have to go straight to the court in Strasbourg where there are no Scottish judges and a 140,000 backlog of applications," Wallace added. |
| "It costs more and takes longer. Why is that preferable to a UK court that has two of the foremost Scottish judges of their generation?" | "It costs more and takes longer. Why is that preferable to a UK court that has two of the foremost Scottish judges of their generation?" |
| The row has split the Scottish judiciary and legal profession. Many senior judges, supported by the former lord advocate Elish Angiolini, have openly challenged the supreme court's authority to overrule them. | The row has split the Scottish judiciary and legal profession. Many senior judges, supported by the former lord advocate Elish Angiolini, have openly challenged the supreme court's authority to overrule them. |
| As a result, the UK government is planning to tighten up its rules and make its role in judging human rights law clearer. | As a result, the UK government is planning to tighten up its rules and make its role in judging human rights law clearer. |
| The supreme court's members are expected to resist attempts to give politicians any "improper influence" over on which judges sit in the court, but would consider "sensible" further reforms that protected their independence. | The supreme court's members are expected to resist attempts to give politicians any "improper influence" over on which judges sit in the court, but would consider "sensible" further reforms that protected their independence. |
| Some lawyers also believe Salmond is attacking the court because he fears it could overrule controversial Holyrood legislation, including the independence referendum bill, in the future. The Law Society of Scotland has asked for a full audit of all Scottish legislation to ensure it abides by human rights law. | Some lawyers also believe Salmond is attacking the court because he fears it could overrule controversial Holyrood legislation, including the independence referendum bill, in the future. The Law Society of Scotland has asked for a full audit of all Scottish legislation to ensure it abides by human rights law. |
| The expert review set up by the Scottish government is due to urgently produce proposals for debate by the Scottish parliament this month. | The expert review set up by the Scottish government is due to urgently produce proposals for debate by the Scottish parliament this month. |
| Salmond told Newsnight it could recommend that the supreme court only take criminal cases if given leave by a Scottish court or set up a Scottish human rights court. | Salmond told Newsnight it could recommend that the supreme court only take criminal cases if given leave by a Scottish court or set up a Scottish human rights court. |
| He said: "The big difference between the Strasbourg court and what the supreme court is doing is [that] Strasbourg can't strike down convictions. The Strasbourg court doesn't open cell doors and allow people to walk free. | He said: "The big difference between the Strasbourg court and what the supreme court is doing is [that] Strasbourg can't strike down convictions. The Strasbourg court doesn't open cell doors and allow people to walk free. |
| "And it certainly doesn't do it without a proper examination of the degree of protections and checks and balances within the Scottish judicial system." | "And it certainly doesn't do it without a proper examination of the degree of protections and checks and balances within the Scottish judicial system." |
| Lord Jim Wallace, the Advocate General – the UK government's Scottish law officer – insisted the supreme court had only limited powers to determine Scottish cases, purely on human rights and EU law. It very rarely hears Scottish cases – only twice since it was set up. | Lord Jim Wallace, the Advocate General – the UK government's Scottish law officer – insisted the supreme court had only limited powers to determine Scottish cases, purely on human rights and EU law. It very rarely hears Scottish cases – only twice since it was set up. |
| Its predecessor, the privy council, heard just 11 appeals in 11 years. There was only one British judge amongst 50 sitting in Strasbourg, but two "vastly experienced" Scottish judges on the supreme court, which also has a Northern Irish judge. | Its predecessor, the privy council, heard just 11 appeals in 11 years. There was only one British judge amongst 50 sitting in Strasbourg, but two "vastly experienced" Scottish judges on the supreme court, which also has a Northern Irish judge. |
| Wallace said his own expert group had already looked at the supreme court, and its unanimous defence of the court had been supported by the Law Society of Scotland, the Scottish Human Rights Commission and the Faculty of Advocates. | Wallace said his own expert group had already looked at the supreme court, and its unanimous defence of the court had been supported by the Law Society of Scotland, the Scottish Human Rights Commission and the Faculty of Advocates. |
| A statement on his behalf said he "believes that the people of Scotland should have their human rights protected to the same level as those in other parts of the UK". | A statement on his behalf said he "believes that the people of Scotland should have their human rights protected to the same level as those in other parts of the UK". |
| It added: "Cutting out the supreme cCourt would lead to increased delay and expense in Scottish criminal cases, since more cases would end up at Strasbourg." | It added: "Cutting out the supreme cCourt would lead to increased delay and expense in Scottish criminal cases, since more cases would end up at Strasbourg." |
| Lord Colin Boyd QC, a former lord advocate under the last Labour coalition government in Edinburgh and a member of Wallace's group, said the supreme court had a clear and necessary role to protect fundamental legal rights. He added that the Scottish government was pursuing a nationalist agenda. | Lord Colin Boyd QC, a former lord advocate under the last Labour coalition government in Edinburgh and a member of Wallace's group, said the supreme court had a clear and necessary role to protect fundamental legal rights. He added that the Scottish government was pursuing a nationalist agenda. |
| "I'm proud of the Scottish system as a Scottish lawyer, but legal systems have to grow and develop and serve the people – they're not there as totems for nationalists," he said. | "I'm proud of the Scottish system as a Scottish lawyer, but legal systems have to grow and develop and serve the people – they're not there as totems for nationalists," he said. |
| "We have to abide by the highest international standards, and if that means that notions of civil and human rights come from elsewhere, my view is that it enriches Scottish law, rather than diminishes it. | "We have to abide by the highest international standards, and if that means that notions of civil and human rights come from elsewhere, my view is that it enriches Scottish law, rather than diminishes it. |
| "It would be better as a country – and that is the legislature, the government and the courts – if we ensured that we actually have a modern legal system that is fit for purpose." | "It would be better as a country – and that is the legislature, the government and the courts – if we ensured that we actually have a modern legal system that is fit for purpose." |
| Mike Dailly, a leading defence lawyer from the Govan Law Centre, in Glasgow, said it appeared Salmond was "just trying to pick a fight." | Mike Dailly, a leading defence lawyer from the Govan Law Centre, in Glasgow, said it appeared Salmond was "just trying to pick a fight." |
| He added: "I think it's deplorable that Scottish justice ministers have chosen to threaten the supreme court with the withdrawal of funding. What must international observers be thinking when they see a Scottish justice minister threatening a court of law? | He added: "I think it's deplorable that Scottish justice ministers have chosen to threaten the supreme court with the withdrawal of funding. What must international observers be thinking when they see a Scottish justice minister threatening a court of law? |
| "Salmond shamed Scotland with his unprecedented personal attack on Lord Hope, and undermined the rule of law." | "Salmond shamed Scotland with his unprecedented personal attack on Lord Hope, and undermined the rule of law." |
| The controversy centres around the supreme court's power, given to it when it was set up in 2009, to rule solely on whether a Scottish criminal court had breached the European convention on human rights or failed to uphold a defendant's human rights. | The controversy centres around the supreme court's power, given to it when it was set up in 2009, to rule solely on whether a Scottish criminal court had breached the European convention on human rights or failed to uphold a defendant's human rights. |
| It has no power to rule on the crimes or laws passed by the Scottish parliament – unless they breach the convention – and has only ruled on two Scottish criminal cases, the Nat Fraser murder conviction and Scotland's failure to give defendants in police custody fair access to a lawyer. | It has no power to rule on the crimes or laws passed by the Scottish parliament – unless they breach the convention – and has only ruled on two Scottish criminal cases, the Nat Fraser murder conviction and Scotland's failure to give defendants in police custody fair access to a lawyer. |
| From 1999, this power was previously held by the privy council under the Scotland Act 1998, but very rarely used. | From 1999, this power was previously held by the privy council under the Scotland Act 1998, but very rarely used. |
| The supreme court has only twice ruled on Scottish criminal issues, but the Scottish government claims that power directly challenges the historic independence and autonomy of Scots law. | The supreme court has only twice ruled on Scottish criminal issues, but the Scottish government claims that power directly challenges the historic independence and autonomy of Scots law. |
| The supreme court's supporters argue that these powers already exist at the European court of human rights in Strasbourg, but that court has no Scottish judges and is far slower than the supreme court. They add that both Hope and Rodger also rule on English legal cases. | The supreme court's supporters argue that these powers already exist at the European court of human rights in Strasbourg, but that court has no Scottish judges and is far slower than the supreme court. They add that both Hope and Rodger also rule on English legal cases. |
| Salmond argues that no other European country has two "foreign" appeal courts overseeing its legal system. | Salmond argues that no other European country has two "foreign" appeal courts overseeing its legal system. |
| The row exploded after the supreme court ruled last week that the Scottish courts had breached Fraser's human rights and denied him a fair trial, because significant evidence had been withheld at his trial. | The row exploded after the supreme court ruled last week that the Scottish courts had breached Fraser's human rights and denied him a fair trial, because significant evidence had been withheld at his trial. |
| In a judgment written and given by Hope, the Scottish courts were told to either quash the conviction or stage a fresh trial. | In a judgment written and given by Hope, the Scottish courts were told to either quash the conviction or stage a fresh trial. |
| In a previous case, the so-called Cadder judgment, the supreme court found Scotland had breached the human rights of tens of thousands of suspects by allowing police to question them for up to six hours without a defence lawyer. | In a previous case, the so-called Cadder judgment, the supreme court found Scotland had breached the human rights of tens of thousands of suspects by allowing police to question them for up to six hours without a defence lawyer. |
| Although that ruling had been widely predicted by senior lawyers, the Scottish government was forced to enact emergency legislation to change the law and prevent compensation payments worth hundreds of millions of pounds. Nearly 3,500 convictions were affected. | Although that ruling had been widely predicted by senior lawyers, the Scottish government was forced to enact emergency legislation to change the law and prevent compensation payments worth hundreds of millions of pounds. Nearly 3,500 convictions were affected. |