Alex Salmond’s criticism of the UK Supreme Court is grandstanding

So, Mr. Salmond would like to see the removal of the Supreme Court’s pow­er to decide Human Rights issues with regard to the Scot­tish crim­i­nal jus­tice sys­tem. More­over, he has cho­sen to per­son­alise the issue by attack­ing Lord Hope, the deputy pres­i­dent of the Supreme Court, and pre­vi­ous­ly lord jus­tice gen­er­al of Scot­land. The sit­u­a­tion has become so far­ci­cal that the Scot­tish Gov­ern­ment, led by the SNP, are look­ing at remov­ing fund­ing for the Supreme Court.

Loads of heat and noise there, against a tar­get that, to retain its impar­tial­i­ty, does not involve itself in pol­i­tics. It’s easy to shoot at some­thing that won’t shoot back, isn’t it?

Any­way, the changes the SNP are propos­ing will not mean that deci­sions of the Scot­tish crim­i­nal courts will not be prone to any review — it will mean that, as before the intro­duc­tion of the Scot­land Act and the Human Rights Act, Human Rights chal­lenges to it will have to go to the Euro­pean Court of Human Rights in Stras­bourg rather to the UK Supreme Court. This will of course mean con­sid­er­able delay com­pared to now. And on the Euro­pean Court of Human Rights there are pre­cise­ly no judges with exten­sive under­stand­ing of the Scot­tish crim­i­nal jus­tice sys­tem. On the UK Supreme Court, there are two — Lord Hope and Lord Rodger, who is unfor­tu­nate­ly ill at the moment.

What Alex Salmond is doing is trans­par­ent — and it has noth­ing at all to do with the qual­i­ty of jus­tice in Scot­land, or the rest of the UK. Salmond, as leader of the Scot­tish Nation­al Par­ty, has just won a major­i­ty in the Scot­tish Par­lia­ment. His par­ty are com­mit­ted to a ref­er­en­dum on whether Scot­land should be inde­pen­dent or not in the lat­ter half of this par­lia­men­tary ses­sion. It is there­fore to his advan­tage to crit­i­cise deci­sions made by oth­ers that affect Scot­land — it’s the old “them and us” ploy. While Mr Salmond has always had a ten­den­cy to play the “poor down­trod­den Scots” card at every oppor­tu­ni­ty, to per­son­alise the attack against the Scot who, with the oth­er mem­bers of the Supreme Court, is the last bas­tion against Human Rights-based mis­car­riages of crim­i­nal jus­tice in Scot­land, is rep­re­hen­si­ble.

What we should real­ly be ques­tion­ing here is the deci­sions of the High Court of Jus­ti­cia­ry in Edin­burgh. In both their judg­ment in Fras­er and HMA v McLean (the fore­run­ner to Cad­der) — the lat­ter with a bench of no less than sev­en jus­tices — they have got a point of Human Rights law wrong. What is caus­ing this dif­fi­cul­ty in cor­rect­ly analysing whether aspects of the Scot­tish crim­i­nal jus­tice sys­tem is com­pli­ant with the Con­ven­tion on Human Rights?

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