What’s behind the war of words? The referendum

Columnist

Sunday 19 June 2011

ALEX Salmond doesn't really do sorry, so opposition leaders were wasting their breath calling on the First Minister six times to apologise for derogatory remarks made about the Supreme Court judge, Lord Hope.

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Iain Macwhirter

Most politicians would probably have made some vaguely conciliatory remarks. Not Salmond.

The First Minister “regrets nothing” – except perhaps the timing of his interview for Holyrood magazine, which had been conducted before the Scottish government set up the Supreme Court Review group under Lord McCluskey. Salmond thinks that, on balance, the stushie was a positive thing in that it at least publicised the independent Scottish legal system. A surprising number of Scots aren’t fully aware of this.

But why is the FM so bothered about those allegedly “aggressive interventions” by the Supreme Court, which guards against breaches of human rights? And why pick a very public row with one of Scotland’s most senior judges, a former Lord President of the Court of Session? Judges generally win these exchanges, because they are seen as more creditworthy than mere politicians. And anyway, since when was Alex Salmond opposed to protecting fundamental rights such as freedom of speech, fair trial, religious tolerance etcetera? If the Scottish courts fail in their duty to give Nat Fraser a fair trial, or allow suspects to be interrogated for six hours without a lawyer, shouldn’t he welcome the Supreme Court stepping in to see that justice is done? It is not easy to explain precisely what is wrong with the Supreme Court as it stands, especially when Scots law has been caught with its collective pants down on human rights. But it does matter if 900 prosecutions have to be abandoned because of a Supreme Court ruling, or large sums of money have to be paid out to prisoners over a slopping-out ruling. And it matters particularly because these things would not have happened in England – or indeed in Scotland, before the Supreme Court came along. It seems to me that there has been an almost wilful refusal by most of the Scottish press to understand what is really going on here. The row is being portrayed either as Salmond picking another fight with London, or trying to undermine the independence of the judiciary.It is not just the First Minister who’s bothered – so are the former Conservative Lord Advocate, Lord Fraser, the last Lord Advocate, Elish Angiolini, the former President of the Law Society of Scotland, Ian Smart and the prominent QC Paul McBride. There is now an unsustainable legal anomaly: in England, the Supreme Court can only hear criminal appeals when it has been given leave so to do by the English court of appeal. In Scotland it can intervene directly under an obscure clause in the 1998 Scotland Act that subjects all actions of Scottish ministers to review under human rights legislation. In England, decisions by the Supreme Court are like rulings from Strasbourg – they require the Government and the legal system, over time, to conform to the European Convention on Human Rights. In Scotland, they can open the cell doors. And it’s not just criminal appeals and slopping out. The Supreme Court has powers to overturn or delay acts of the Scottish Parliament. And this is where the possible future role of the Supreme Court becomes particularly interesting. THE mission statement of the Supreme Court says that it “concentrates on cases of the greatest public and constitutional importance”. This is a young institution with big ambitions. It clearly intends to have a role in shaping the constitutional evolution of the United Kingdom. You only have to look at the role supreme courts have played in constitutional battles abroad to understand why the SNP would be uneasy about letting this body get too big for its boots. In 1998, the Supreme Court of Canada ruled that Quebec had no right to secede unilaterally from the Canadian Federation. Sovereignty could be granted only if the question was clear and unambiguous and ensured that a new form of association with the rest of Canada would result. There also had to be a very clear majority in favour of this new form of association. There are echoes here of the 40% rule in the 1979 Scottish devolution referendum. In future, could the UK Supreme Court overrule a referendum on Scottish independence if it didn’t like the question on the ballot paper or demanded that it was endorsed by more than 40% of Scots? Possibly.There will likely be three questions on the Scottish referendum ballot paper, so there could be endless scope here for legal wrangling about what it means. It’s not impossible that the Supreme Court could rule that the devolved Scottish Parliament had no right to hold an independence referendum, or that a second referendum would be required after the negotiations on separation had been concluded. This is not just nationalist paranoia. This very week, the Spanish Constitutional Court is preparing to issue its ruling on the validity of the Catalonian “statute of autonomy” that was endorsed by a referendum in the region in 2006. The UK state is “tooling up” for the challenge of a Scottish referendum led by a confident nationalist government. It could be that Salmond v Hope is just the first round of Scotland v Crown.

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What’s behind the war of words? The referendum

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