While I have the greatest respect for Lord Hope, I cannot accept for a moment that there is a corrosive anti-English sentiment in Scotland's courts.
Alex Salmond was vilified last year for suggesting that Scotland’s Appeal Court would be undermined by the Supreme Court in England, if the English court heard cases that had been refused leave to appeal in Scotland. That currently remains the position.
In England, Wales and Northern Ireland, if their highest courts refuse leave to appeal, or refuse certification for cases to go to the Supreme Court, that is the end of the matter. One wonders why their judges’ decisions in these juristictions are treated with respect, and why the same respect is not given to ours.
It was in the light of this controversy that Lord McCluskey headed up an independent group that recommended there should be certification by the Scottish courts before a case could go to the Supreme Court in London.
Lord Hope has given no justification as to why that would be inappropriate. Indeed, his speech will be seen by many as an unprecedented political attack by a judge on the Scottish Goverment and indeed the Scottish Parliament for raising this issue at all.
I do not accept that there is any obstacle to progress by allowing the certification process to occur in Scotland. Lord Hope’s attack on Lord McCluskey is not an appropriate use of language by the deputy president of the Supreme Court.
In my view Kenny MacAskill, the Justice Secretary, is correct in his analysis that the High Court of Justiciary is our apex court of criminal law and should have the same responsibilities and rights as equivalent courts in the rest of the UK.
Although Lord Hope indicates that Scottish judges take the lead in cases that come before them from Scotland, the fact is they are always in a minority.
I gave evidence on this issue along with Lord McCluskey. There is no suggestion at all of any anti-English feeling, but simply real concern that our courts in Scotland were being treated differently.
I expect Lord Hope to respect the decision of the Scottish Parliament. And I hope that when Alex Salmond is asked to comment he can do so without being attacked.
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