First Minister defends independence of Scots law

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Scotland’s High Court of Justiciary must be the final court of appeal in Scots criminal law and not the UK Supreme Court, First Minister Alex Salmond said in Parliament today.

Responding in withering style to opposition concerns about Justice Secretary Kenny McAskill’s verbal attacks on the Supreme Court, Mr Salmond not only refused to criticise Mr McAskill but went further in his personal campaign to ensure that Scottish justice, not a ‘British’ version, prevails.

As predicted by Newsnetscotland.com last week, this controversy just keeps growing. First Minister’s Question Time was dominated by the issue which came to the fore last week when the Supreme Court overruled on human rights grounds the conviction of Elgin businessman Nat Fraser for murdering his wife Arlene in 1998.

Nigel Don, SNP MSP for North Angus and Mearns, asked if the Scottish Government considers the High Court of Justiciary should be the final arbiter of criminal cases in Scotland.

“Yes,” replied Mr Salmond. “It is our firm view that the final appeal court for any Scottish criminal case should be in Scotland is it was always meant to be.”

Mr Don said there was international, European, Scots and English law but “no British law,” to which Mr Salmond replied: “We want to have a situation where Scottish justice is brought home where it was always meant to be, by the courts of Scotland.”

Conservative leader Annabel Goldie asked Mr Salmond if he endorsed Mr McAskill’s remarks about the lack of knowledge of Scots law among Supreme Court judges.

The First Minister said: “I fully endorse the Justice Secretary in all aspects of his excellent work.”

He then went on to point out Scottish Tory peers had raised concerns about Scots law’s independence during the debate on the Scotland Act in 1997 and 1998.

Mr Salmond said: “John Mackay (the late Lord Mackay of Ardbrecknish) actually asked in the House of Lords for an assurance that we would not arrive at a situation where the High Court of Justiciary was not the final court of appeal for Scots criminal matters. He was given that assurance, and I think that any fair-minded person would say that assurance has not been proven to be anything like copper bottomed.”

Ms Goldie said that the First Minister’s hostility to a British court was evident in his “Little Scotlander” approach.

Mr Salmond pointed out that his objections were shared by Conservatives such as Paul McBride QC, Lord Fraser of Carmylie, and the former Labour-appointed Lord Advocate Elish Angiolini. He also quoted an article in the Herald in 2003 which stated that calling the  
court the Supreme Court of the United Kingdom “tended to suggest   
there is a body of United Kingdom law, and Scots may well feel  that would introduce a drift away from their system of Scots law into an English system.”

The author of “these wise words,” said Mr Salmond, was Lord Hope of Craighead, now Deputy President of the UK Supreme Court.

Liberal Democrat leader Willie Rennie asked if Kenny McAskill had raised with the First Minister his plan to cut the Scottish funding of the Supreme Court, and accused the Justice Secretary of using “the language of the football terraces” in his “tawdry remarks” about the Supreme Court.

Mr Salmond replied: “It is enormously expensive to plead cases before the Supreme Court. The implications of decisions could cause tens, indeed hundreds of millions of pounds, which many of us believe could be spent on the police services and courts and law-abiding citizens of this country.”

He added: “Willie Rennie…might think it perfectly acceptable for us to have imperfections in our legal system, unintended consequences of legislation, major constitutional changes as the judicial submission put it to Lord Wallace’s review last year, I do not. I don’t think it is right and proper for the citizens of this country to feel that their justice system is being second-guessed because of imperfections in legislation.

“What I think is right and proper is to proceed in the way that the Cabinet agreed on Tuesday which is to have a review group that will present proposals to this Parliament which can then come to conclusions for the people of Scotland.”

After First Minister Questions, it emerged that a group of so-called ‘influential lawyers’ had called on Mr McAskill to resign.

The political impartiality of the lawyers may well be questionable – the most senior of their members was Brian Fitzpatrick, the former Labour MSP who is now an advocate. The other signatories are John McGovern, Solicitor-Advocate; Mike Dailly, Solicitor; Patrick McGuire, Solicitor-Advocate and Marie MacDonald, Solicitor.

The group wrote in an open letter: “Not only is it deplorable that Scotland’s Justice Minister has chosen to threaten the Supreme Court with the withdrawal of Scottish funding, but it is unconstitutional.  
Kenny MacAskill’s position must now be untenable.

“The Scottish Government’s notion that the Supreme Court might well get it right, but should not be allowed to get it right, is dangerous.”

The letter goes on: “Blame for the systemic failings in our legal system, or errors of judgment, should be apportioned with those who are responsible, whether Scottish Government civil servants, Scottish law officers or members of the Scottish Government. The unprecedented personal attack on Scottish judges and the UK Supreme Court can only shame Scotland internationally, undermine the rule of law, and threaten access to justice for Scots.”

Newsnetscotland has pointed out since last week that human rights issues need to be addressed by the Scottish legal establishment. Kenny McAskill has frequently pledged to do that, and we predict he will not be resigning.

Tomorrow, Newsnetscotland will PROVE why the Supreme Court is an issue that should concern all Scots.