Following on from the recent attacks by the First Minister and his Justice Secretary on the UK Supreme Court, and particularly Lord Hope, the Deputy President of the court, there was a feeling that matters might have slightly cooled, especially with the creation of Mr Salmond’s “stellar” panel to consider the whole matter of the UKSC’s involvement with Scots Law.
In it Mr Salmond makes a number of remarkable comments. He is clearly raising the stakes in his dispute with the UKSC. He seems, to this observer’s eyes, to be basing his arguments against the role of the UKSC in Scots Law (and there is clearly a debate to be had there) on a personal attack upon Lord Hope and an attempt, it seems, to politicise the matter in to a Scotland v England issue.
Whilst matters started, as mentioned below, with the question of whether or not the UKSC had a role in Scottish criminal law, the battle ground envisaged by Mr Salmond is clearly much wider,a nd the goal nothing less that the removal of the UKSC from involvement in any Scottish cases, whether criminal or civil.
Political considerations are clearly at play here for the First Minister, and the result of a case presently proceeding before the UKSC may well cause the furore to escalate exponentially, depending on the outcome.
The recent fuss started following the decision of the UKSC to tell the High Court to quash the conviction of Nat Fraser for murder.
“The FM reacted with surprising fury, lashing out at a London-based court that he said was ‘second guessing’ Scotland’s justice system and had ‘no role’ to play here.”
As wiser people than me have said, this was not a fair characterisation of the UKSC decision. The judges saw a clear breach of Mr Fraser’s rights and saw that the High Court had asked itself the wrong question in deciding the appeal itself. It seemed, from a legal point of view anyway, a bad case to be planting the standard of Scots Law independence upon, as the whole appeal arose from a failure by the prosecution to disclose potentially relevant, and indeed vital, evidence to the defence, leading to the trial probably having been conducted in a very different manner by both Crown and defence if disclosure had taken place.
Just before that Mr Salmond had correctly defended Scots Law in the CTB injunction case, pointing out that the English High Court jurisdiction did not extend past the border.
It seemed clear that Mr Salmond, following his election triumph, felt that the law was a good issue to identify as one where “England” was interfering with Scotland.
Now, he cannot be criticised for trying to make political capital from a situation – that is the bread and butter of politics, but there ought to be a proper basis for the politicking.
Mr Salmond, as he said, felt that the UKSC had “no role” to play in Scottish criminal cases. The clear implication for his “stellar” panel is that they are to recommend changes – Mr Salmond is clearly not looking for a report which maintains the status quo.
Should the panel not recommend change acceptable to Mr Salmond, will he let the matter lie, or, as he is constitutionally entitled to, will he continue to seek UK legislation to change the UKSC jurisdiction anyway?
I am sure Mr Salmond has not considered that, in political terms, it might appear electorally advantageous if the Scottish Government insisted on changes to the UKSC jurisdiction, which changes were not acceded to by the Westminster coalition. I am sure he has given no thought to how that might play in terms of a forthcoming referendum on Scottish independence as example of Scotland’s will being thwarted by “London”.
Lord Hope was accused by Mr Salmond of “routinely interfering in criminal appeals in Scotland”.
Coupled with the reference by the Justice Secretary to “ambulance chasers” this suggests that Lord Hope has taken to pursuing vigorously any chance he has to get his nose stuck in to the Scottish criminal justice system. That, on any analysis of the actual cases, is not the case.
Very few Scottish appeals in criminal matters make it to the UKSC, or to the Privy Council, as was. In general the appellant has lost. The court has had a number of opportunities to interfere, if it so wished. These have not been taken, and where the UKSC has decided differently from the wishes of the Scottish Government, the judgements seem based on a detailed examination of the law. People might disagree about the interpretation, but it can’t be said that the UKSC is “shoe horning” itself into matters in the manner, for example, of its USA namesake.
As an aside at this point, Mr Salmond goes on in his Holyrood interview to comment regarding the Scotsman as follows:-
“Even if I was the most pronounced unionist in the world and thought the whole idea of Scotland was a silly historical aberration and thought that the Scottish justice system was the worst legal system in the world, if I was editing the Scotsman newspaper, then I would still ask myself ‘why would anyone buy my newspaper rather than buying a rather better alternative’ and they might do it because I have a unique insight and support for the Scottish dimension and hopefully, once you have that, you get better journalists and better writers but what I don’t understand is that the editor sees circulation going down and down and yet the response is to publish more and more of this stuff.”
That part of the interview does not seem, from what I have read, to have made it in to the Scotsman!
Mr Salmond went on:-
“The right thing to do and what the Cabinet chose to do was … to establish a review group of extraordinary prestige, even if I may say so, of more prestige even than Lord Hope, to look at the thing and come up with some recommendations that the Parliament can then debate.”
It is an interesting academic question as to the respective merits of the “stellar” panel as against Lord Hope, who is, undoubtedly, one of the finest Scottish legal minds for many a generation, but one I will pass over for now. I will also pass over the fact that none of the cases involve Lord Hope sitting alone – there is always another Scottish judge, whether Lord Rodger or presently Lord Reed, sitting along with other UK judges to make up the panel.
Mr Salmond goes on to comment that the other judges on the UKSC panel are not versed in Scots Law. They come from the other jurisdictions of the UK. Effectively, he implies, the judges are therefore a front for Lord Hope and the other Scottish judge.
However, bearing in mind that his choice, as an alternative, is to go to Strasbourg and the European Court of Human Rights, where there are no Scottish judges amongst the 47 members, this seems odd, to say the least. How is Scots Law served by having vital matters considered by a court with none of the expertise Mr Salmond considers essential?
“That takes it away from the personalities involved and recognises that there is an issue that needs to be properly debated and that the Parliament should have their say and then recommendations will then go to the Westminster Government which they may or may not put into the Scotland Act. That seems the correct way to approach things.”
To suggest that personalities should be taken out of the matter seems wise – however the First Minister cannot resist bringing them back in!
“All I would say to Lord Hope is that I probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it.”
This, to a lawyer or constitutionalist, seems to come to the nub of the matter. There is a well known doctrine of the separation of powers. The executive, legislature and judiciary have separate and distinct jobs to do, and they should be allowed to get ion with them. Of course Parliament passes the laws to be applied by the courts, and can even, as part of the legislation, tell the courts how to do so, but, on a day to day basis in the UK, the courts run free of political “interference”, or at least they should. Politics and law may “intertwine” but it would be a surprise if Mr Salmond meant that, over and above the law, judges should take “politics” into consideration in deciding cases.
The politicisation of the courts is something which is far more concerning in many other countries of the world. Here, despite there having been some “political” judgements in the past, the UK courts have a reasonable record of resisting being told what to do by politicians, rather than by Acts of Parliament.
It is not a matter for the courts to assess the political consequences of their decisions. The court applies the law before it. The recent BBC documentary on the workings of the UKSC interviewed some of the Justices, including Lord Hope, and it was made clear that sometimes there were cases where, in human terms, a particular judgement should be given, but the law simply does not allow it. It is right that the courts don’t bend to whims of human sympathy if against the law they are to apply, and equally, the courts should not be badgered by politicians, no matter how eminent, into going along with them.
The implication of this is that it was down to Lord Hope that prisoners were being paid compensation for having to endure the indignity of slopping out. Later in the piece, Mr Salmond makes clear that, in fact, the decision that damages should be paid for slopping out came from the Scottish courts, and seems to suggest therefore that there is no need for any UKSC involvement, as the Scottish Courts could fix the problem anyway. In addition, Mr Salmond is correct to point out that the Labour/Lib Dem coalition had had it made clear to them that slopping out needed to end, but that they chose to allocate funds for this elsewhere. HAving been warned, it was no surprise that the Scottish courts ultimately found against the Scottish Executive.
Instead his gripe is with the Somerville case, which was decided by the Privy Council, including Lord Hope, on the question of whether or not there was a time bar for bringing cases based on breaches of the ECHR. The court decided that, as legislation stood, there was none. There was then legislation put in place to establish a one year period for claiming. Whilst this decision meant that many claims which had been on hold were then paid out, the fact that Parliament could legislate to plug the gap suggested that, if so minded, they could have done so long before. The issue was not a novel one when decided by the Privy Council. Instead, as in the Cadder case, the Government waited to see if it had won, before bringing in the changes which it clearly thought were necessary anyway!
If Parliament, whether at Westminster or Holyrood, cannot pass legislation which is up to the job, then it is not for the courts to say “Politically we should ignore the law and decide what the Government wants!”
In connection with slopping out, it was the Scottish courts that decided that these “vile” individuals were due compensation.
It should also be noted that the Somerville case, whilst about criminals, was not a case about criminal law. Whether right or wrong, the House of Lords, and now the UKSC, has had a part to play in Scottish civil cases for many long years. It seems therefore that Mr Salmond’s complaints are designed to leave the UKSC with no role to play in Scots Law at all.
In any event, politicians all round the world have, for many years, been decrying judges when they don’t like the decisions arrived at. In other countries judges live in fear of attack or imprisonment when they “stand up to” the Government. That, thankfully, is not the case here, but it remains wrong for any party, especially the Government, to attack the court when it does not like the outcome of a case. As Mr Salmond says, the solution is not to moan about it, but to legislate.
Mr Salmond then goes on, in an aside, to refer to the fact that he, at least, went to the bother of being elected, unlike, by implication, Lord Hope. Mr Salmond rightly says that this counts for something. But no-one is stopping him from talking. Instead he should be basing his criticism of the UKSC, not Lord Hope on the facts, and as he himself says, not to personalise the matter but to do so properly on the issues.
If Mr Salmond wants Scotland’s Sheriffs and Judges to be elected, then perhaps the SNP manifesto ought to have said so!
After an attack on the distinguished Human Rights lawyer Professor Tony Kelly, which I’ll comment on later, the interview concludes with Mr Salmond’s impassioned plea about why the UKSC and especially Lord Hope are wrong, in the context of Somerville and Cadder and wider too.
“My complaint of the Privy Council is that they gave a ruling in the full knowledge that they were subjecting the Scottish Parliament and the Scottish people to an unquantifiable bill stretching back to 1999 which no jurisdiction and certainly not England, for example, which is presumably why the two English judges demurred, would accept such a position with such immediate and long vulnerability. If people make judgements in the full knowledge of what they are doing, albeit that the Privy Council thought the Scottish Parliament could sort it, either you give the Scottish Parliament the powers to correct deficiencies in its legal system without seeking by your leave from Westminster or you stop issuing edicts that are unenforceable by the Scottish Parliament.”
As mentioned, the “problem” here was with the drafting of the Scotland Act and its incorporation of the Human Rights Act in to Scots Law directly. Should there have been a time bar clause? In any event, there was not, and it took years before the legislature wised up to that fact.
It seems odd that, to some degree, Mr Salmond seems to be suggesting that the Scottish Government ought not to be required to follow the ECHR. At the same time, he is suggesting that the courts ought not to follow the law as it is framed, but instead re-interpret it in a way that suits him.
It is also surely not for the court to consider how their judgement will play in the wider world before making it?
In relation to Cadder, the First Minister goes on to say:-
“There seems to be a general presumption that if Cadder had gone to Strasbourg then he would have won and the court would have held against Scots law and I see no basis for that assumption. The case in February, the Thomas Judge case, was a case in point that some people assumed that the Strasbourg court would find against the Scots jury system but the judges held on both counts with the Scottish legal system. Why? Because the Strasbourg Court is not a uniform court and accepts differences in legal systems and is trying to find out if the legal system has a balance which is why I am not frightened of it. There are lots of incidences where it does that so the presumption that we would have lost on Cadder is therefore wrong headed and if you read some of the judgements, particularly by Lord Hope, you can see why it is wrong headed.”
From the man who earlier accepted that he knew a little about the law, it’s interesting to see how confident he is that Lord Hope got Cadder wrong! He also seems not to realise, or simply to ignore, that the judgements are collaborative efforts of the judges. It is not simply the vase that Lord Hope decided this case, wrote up a judgement and presented it to the fellow judges as a fait accompli. Cleary they concurred with him.
Mr Salmond makes reference to the “victory” for the UK in the Judge case in February, as opposed to the “defeat” in Cadder as showing, somehow, that the Strasbourg court is “better” at dealing with these matters for Scotland that the UKSC. But most challenges to the Scottish Government that have gone to the UKSC/Privy Council have failed.
So what have we, when all things are looked at here?
The First Minister, who has a vital role as Scotland’s leader, has attacked, personally and professionally, the Deputy President of the UKSC and by extension the court itself, for simply doing its job and coming out with a couple of decisions he doesn’t like.
In addition, he and his Justice Secretary have personally attacked a judge who is presently engaged in cases to which the Scottish Government is an active party! If a mere mortal did so, they would be looking at being summoned for contempt!
Presently before the UKSC is a challenge by insurance companies to the Scottish legislation granting compensation to pleural plaque sufferers. The insurers seek to have the UKSC strike down the legislation as ultra vires on the basis it breaches the insurers’ “Human Rights”. The UKSC has the power to do so.
From a political view point, if the UKSC does do so, and finds against the legislation, then what we have seen so far will seem like a storm in a teacup!
It would be entirely wrong for anyone to think that Mr Salmond would see any pleasure from such an outcome, no matter how politically advantageous it might be for the SNP, if it meant that thousands of potential claimants lost their rights to claim, and the blame for this could be laid at the door of the “English” Supreme Court.