Supreme Court battle : Alex Salmond’s understanding of Scots Law & Scots human rights appears flawed. In a week where the vast majority of headlines concerning the Scottish legal system have been taken up by the continuing arguments over the Supreme Court’s ruling in the Nat Fraser case, pitching the misunderstandings of First Minister Alex Salmond & threats from Justice Secretary Kenny MacAskill against the need to maintain the human rights compliance of Scots law with European Convention on Human Rights (ECHR), it may be worth reflecting on the simple fact that in this case, the Scottish Government are very very wrong and very much at odds with the protection of human rights of individual Scots, whether the case be criminal law, or civil.
Scotland’s Justice Secretary Kenny MacAskill said Supreme Court judges knew Scots Law only through visiting the Edinburgh Festival. The Herald newspaper reported on Tuesday of this week that Mr MacAskill, who clearly disagrees with the Supreme Court’s ruling in the Fraser case, had accused the Supreme Court judges (two of whom are Scottish) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”. Mr MacAskill is further quoted in the article : “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”
Mr MacAskill also said the Scottish legal system should have direct access to the European Court in Strasbourg rather than the route of the London Supreme court, however, as cases can take years to reach the European Court, and Legal Aid funding from the Scottish Legal Aid Board is not always obtainable if the applicant’s face doesn't fit, forcing Scots to wait four or more years for a fair hearing at Strasbourg rather than a trip to the Supreme Court is rather impracticable, not to mention breaching the rights of Scots to fair hearing in European law within a reasonable time.
On Wednesday of this week, the Herald newspaper reported the decision of the Scottish Government’s Cabinet to set up an expert group to examine Scotland’s relationship with the UK Supreme Court, quoting First Minister Alex Salmond as saying : “It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government’s desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.”
He said it was “most certainly not”, as had been suggested by Supreme Court judge Lord Hope, “a misunderstanding of the law and the facts on the part of the Scottish Government”, adding “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures, including Lord Fraser, the former Lord Advocate.” Mr Salmond is further quoted : “This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.” yet there are many more respected legal figures who dispute the First Minister’s version of events and view that Scots seeking justice should be forced on the long road to Europe rather than the shorter road to London.
The same day, Wednesday, Scotland’s Justice Secretary Kenny MacAskill threatened to cut funding to the Supreme Court, reported again in the Herald newspaper. The Herald article quotes Mr MacAskill as saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.” Mr MacAskill is further quoted : “But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”
Surely Mr MacAskill’s threat of withdrawing funding from the Supreme Court is a product of desperation in an argument where clearly, with the failure of Scottish judges to understand ECHR & comply with it in rulings in Scotland, Scots should be even more actively encouraged to seek rulings in London, rather than as the Lord Justice Clerk Lord Gill said himself, Scotland’s “Victorian” justice system.
However, in a twist to Mr MacAskill’s position on the funding question, with the Justice Secretary clearly feeling he can withdraw funding for Scottish cases to the Supreme Court, a move many could say is intended to frustrate an individual’s access to justice, Scottish judges themselves have taken an opposite approach and appeared before Holyrood, arguing they should have the power to ensure funding from the Government if justice requires it.
Scotland’s Lord President, Lord Hamilton argued Courts should have power to compel funding for justice. Indeed, the current Lord President, Lord Hamilton appeared before the Scottish Parliament’s Justice Committee, telling msps judicial independence should be maintained and also saying the justice system should have the power to ensure funding is made available for it. Lord Hamilton said : “In difficult financial times, it could be important for the courts to be able to say to the other organs of government that, to maintain a proper judicial system in a democratic society, they require funding of a certain minimum level to discharge that responsibility. It is in that provision that you have the responsibility of providing that for us.”
Video footage of Lord Hamilton speaking on the question of funding for justice is available here : Lord President Lord Hamilton says the courts should have power to compel funding from Government for justice system to work properly
Today, Friday, the Herald newspaper reports the First Minister as having been forced to defend ‘Little Scotlander’ Justice Secretary Kenny MacAskill over his comments against the Supreme Court and accusations against its judges. Mr Salmond, replying to questions in the Scottish Parliament said : “I fully endorse the Justice Secretary in all aspects of his excellent work.”
Clearly, the human rights of Scots are caught up in a game of political football by Supreme Court hating politicians, who are concerned a court which is generally outside their influence is showing up the Scottish justice system to be the archaic, Victorian and prejudiced model we all know it to be, words spoken by some of its own judges and officials on the ground, rather than those living in ivory towers of St Andrews House.
It should also be noted that while the Scottish Government are content to huff & puff, playing to an agenda which seeks to deprive Scots of human rights rulings within a reasonable time, not one single press release or ministerial statement has appeared on the Scottish Government’s own website this week over the Supreme Court debacle, not even a hint of the Justice Secretary’s threat to pull funding for the Supreme Court.
Readers may wish to view the following two interviews and judge for yourselves, who is acting in the public interest to protect Scots rights of access to justice & access to Human Rights :
Making politics : First Minister Alex Salmond claimed the ruling was the replacement of Scottish Law with Lord Hope’s law, even though Lord Hope is a former Lord President of the Court of Session in Scotland.
Making sense : Professor & solicitor Tony Kelly : “If the Supreme court constantly has to overturn the decisions of the Scottish Court there is a problem..”