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?