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First minister and justice secretary, Kenny MacAskill accused court of ‘intervening aggressively’ in Scottish legal system Alex Salmond has provoked a furious row with senior legal figures after he launched 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, have accused the supreme court of “intervening aggressively” in Scotland’s independent legal system after it ruled that the Scottish legal 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. As the same time it emerged that MacAskill wants to stop paying Scotland’s £500,000 annual share of the court’s running costs. Earlier this week, MacAskill 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 a former lord justice general, an appeal judge in the House of Lords and widely regarded as one of the Scotland’s finest lawyers. Speaking on Newsnight Scotland on Tuesday, he 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. “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 critically ill and unable to defend himself. One senior legal figure said he “deplored” the personal attacks. Rodger, a former lord advocate and former lord justice general, was too unwell to deliver the latest supreme court decision relevant to Scotland and has been temporarily replaced by another judge, Lord Clarke. There are doubts over whether Rodger will be well enough to return to the supreme court. 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. Some lawyers also believe that 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. 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 said: “The big difference between the Strasbourg court and what the supreme court is doing, is 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.” Lord Colin Boyd QC, a former Lord Advocate under the last Labour coalition government in Edinburgh and a legal adviser to the current UK government, said the supreme court had a clear and necessary role to protect fundamental legal rights. He said 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. 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,” he said. “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 Govan Law Centre in Glasgow, said it appeared that 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? Salmond shamed Scotland with his unprecedented personal attack on Lord Hope last night, 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 breach the European convention on human rights or had 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. 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’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. 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 Lord 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 that 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. http://www.supremecourt.gov.uk/about/index.html http://www.supremecourt.gov.uk/about/biographies.html Scotland Alex Salmond UK supreme court Human rights Severin Carrell guardian.co.uk