The Justice Secretary has ordered civil servants to investigate whether the Scottish Government can pull the financial plug on Britain’s most senior justices over what he sees as the threat they pose to centuries-old Scots Law.
Scotland currently contributes just under £500,000 a year to the London-based court but it is far from clear if the Scottish Government could stop its cheque.
The unprecedented threat to do so underlines just how angry Mr MacAskill is over two humiliating defeats at the UK Supreme Court, including last week’s decision to overturn the conviction of Nat Fraser for murdering his wife Arlene.
Mr MacAskill said: “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.
“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.”
The court was set up in 2009 to handle cases that used to end up in the House of Lords. That included civil appeals from Scotland, but not criminal ones. However, it has become the arbiter of last resort on all human rights claims, including those involving Scottish criminal appeals. It ruled Fraser, of Elgin, Moray, had not received a fair trial.
Last year the Supreme Court sparked chaos in Scotland when it said the rights of 19-year-old Peter Cadder had been breached when he was questioned in custody by police without access to legal advice.
Some lawyers last night warned that Mr MacAskill, an experienced defence solicitor, was risking a major constitutional crisis just by giving the impression of trying to undermine the finances of the UK Supreme Court.
Professor Tony Kelly, who acted for human rights group Justice in backing the Cadder appeal, said: “This is a politician interfering with the judicial branch of government. That is simply constitutionally impermissible.
“It’s an attack on judicial independence which we have never seen the like of in the UK. We have a politician issuing threats against a court because he does not like its decisions.”
Mr Kelly added: “I don’t see any evidence that the Supreme Court has committed any grievous error. If there were English judges importing English doctrines into Scots Law, I am sure there would be a raft of evidence for Nationalist politicians. But there isn’t.”
Solicitor-advocate John Scott said he did not believe withdrawing funding from the Supreme Court would have any impact on the court’s jurisdiction over Scottish matters.
He said: “This is just political tub-thumping. It is a bit like somebody withholding part of their taxes because they don’t want to pay for nuclear weapons. It doesn’t work like that.”
First Minister Alex Salmond yesterday denied claims he and Mr MacAskill were manufacturing a grievance with the UK authorities for separatist ends.
Mr Salmond said: “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures who have spoken out, including Lord Fraser, the former Lord Advocate.
“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.”
He also warned of the cost implications of multiple appeals to the Supreme Court.
The ongoing row has caused deep divisions in Scotland’s legal establishment. On one side are understood to be Scotland’s judges, some still smarting from seeing their judgments overturned by the UK Supreme Court. On the other are many defence agents and human rights activists, such as Mr Scott and Mr Kelly, who see the human rights court as an essential safeguard.
One of the Supreme Court justices, Lord Hope, a former Scottish Lord President of the Court of Session, has dismissed claims he and his fellow former law lords are second-guessing the Scottish court of appeal.
He said: “We are simply here to do what a court of appeal always has to do, which is to review a decision if there is reason to do so.”
The Scottish Government pays a total of £477,000 a year to the UK Supreme Court, through bilateral arrangements with the UK Ministry of Justice. Most of the cash is for uncontroversial civil appeals.