His inflammatory attack was made in advance of a meeting of the Scottish Government’s Cabinet today to discuss options that a spokesman said were for remedying a situation where Scottish criminal cases face being sent to the UK Supreme Court on human rights grounds.
Although two distinguished Scottish judges – Lord Hope and Lord Rodger – form part of the Supreme Court, Mr MacAskill said the majority were English, Welsh or Northern Irish and had no knowledge of the custom or practice of the law in Scotland.
He said yesterday: “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”
The Scottish Government’s move comes after a ruling last week that Nat Fraser’s conviction for murdering his estranged wife Arlene was unsafe and controversy over the Cadder judgment last year on the rights of suspects to legal representation.
The Cadder ruling overturned a decision by seven senior Scottish judges by finding that allowing suspects to be held and questioned for six hours without a lawyer breached the European Convention on Human Rights.
Mr MacAskill said: “It was never intended that the Supreme Court would be routinely changing Scottish criminal law and that is what has happened.
“It was meant to be a situation that, when the Supreme Court was invoked, criminal law would remain in the jurisdiction of the High Court of Justiciary here in Scotland.
“Only in Scotland did we see a decision taken in London by a court that was not meant to deal with criminal matters result in a situation where we had to have emergency legislation through the Scottish Parliament and turn Scottish criminal law on its head.”
Mr MacAskill said the Scottish legal system should have direct access to the European Court in Strasbourg and would accept its strictures. However, he added: “We’ll do so through our own courts at our own pace in our own way, not have it imposed by a court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”.
His hardline comments mirror the approach taken by First Minister Alex Salmond in the wake of the Fraser judgment when he said: “We certainly don’t need a Supreme Court which by definition comprises of judges, whose familiarity with Scottish legal procedures is inexact at best, to be poking its nose in, putting forward a succession of adventurous moves, encroaching on territory where it was never meant to be.”
For Scottish criminal cases, the Supreme Court is supposed to be used only when the case relates to “devolution matters”, a term covering the legislative competence of the Scottish Parliament in dealing with human rights issues.
John Scott, a human rights expert and solicitor advocate, said “a sense of perspective” was being lost.
“There’s only a very tiny number of cases ever go to the Supreme Court,” he said. “It doesn’t have jurisdiction over the vast majority of criminal cases, it’s only in relation to human rights points.”
Mr Scott said the Crown was going to the Supreme Court at the end of next month to try to get decisions in its favour.
He added: “It’s odd, bordering on hypocritical, to say we don’t like this jurisdiction but we are going to go down next month to try to get some decisions that we like there.
“The Law Society of Scotland suggested we should have a human rights audit of all of Scottish criminal law in order that we would be able to withstand challenge whether it’s from the Supreme Court or the European Court of Human Rights.
“That is perhaps a way ahead that we could all agree on, where we can put Scottish law in a position where it can withstand any challenges for the centuries ahead.”