A Westminster proposal to ensure that super-injunctions granted by the English High Court will apply to Scotland has been attacked by First Minister Alex Salmond as a threat to ''one of the pillars of Scottish nationhood".

Salmond has described the plan as "deeply flawed", and said it had been suggested by politicians who did not "want to understand" the country's independent legal system.

A special Westminster committee was formed last year in response to the growing number of superinjunctions granted by the courts.

In practice, the court orders were sought by celebrities to stop media outlets from publishing details of their private lives.

The legal gags not only stop newspapers from revealing the identity of the people who have gone to court, but also prevent any reporting of the fact that the super-injunction exists.

However, the injunctions were quickly undermined after the names of the celebrities began to circulate on Twitter.

The Sunday Herald caused a furore by revealing that Manchester United footballer Ryan Giggs had been granted a super-injunction. This newspaper was able to disclose the Welsh sportsman's identity as the court edict had no legal force north of the Border.

For a ban to apply in Scotland, the footballer's lawyers would have applied for an interim interdict.

A combination of these issues prompted the joint Westminster committee, made up of 26 MPs and peers, to consider the balance between freedom of expression and the right to privacy.

In its report, published last week, the committee called for the law to apply equally to "print, broadcast and online". They also called for companies such as Google to make sure that no material that breached court orders should be produced by online search engines.

But perhaps their most controversial recommendation was in response to our revelations about Giggs. "We recommend that interim injunctions granted in one jurisdiction in the United Kingdom are enforceable in the other two jurisdictions in the same way as final injunctions are," the report stated.

Such a plan would result in the Scottish court system automatically having to accept an English High Court ban.

Salmond, already exercised by the UK Supreme Court's power to overturn decisions made in Scottish courts, is furious.

Talking exclusively to this newspaper, he said: "Scotland's legal system and institutions are part of the very bedrock of our nation and identity, and they have served the country well for centuries. They are one of the pillars of Scottish nationhood which was specifically protected in the Treaty of Union.

"But the intervening years have seen a gradual erosion of that distinct legal provision. An independent Scotland will, of course, see cases, civil and criminal, settled here in Scotland, while also meeting our obligations under European law."

He said the committee recommendation would undermine the legal system:

"Until we are independent it is vital that there is no more erosion of our legal autonomy – and this attempt to make so-called superinjunctions granted by an English court enforceable in Scotland would do just that.

"It is wrong-headed, deeply flawed and ultimately based on a profound misunderstanding by some Westminster politicians of Scotland's place in the legal fabric of the UK. Put bluntly, they simply do not understand, or want to understand, that Scotland is already a different, independent legal jurisdiction to England's."

Salmond said the move would result in a loss of sovereignty many at Westminster would not accept for the UK: "Perhaps the best way to illustrate how wrong this is would be to imagine how some of these same Westminster politicians would react if there was a similar move to have injunctions granted by a court and judges in any European country – say France, with its well-known and far-reaching privacy laws – applied automatically in every other EU jurisdiction, including in English and other UK courts.

"There would, quite rightly, be uproar at the prospect. Scotland's legal independence must be defended, and English super-injunctions should carry no weight north of the Border."

However, the chair of the committee behind the report has defended the proposal. John Whittingdale, the Tory MP for Maldon, said of the status quo: "Plainly it's a loophole. If the courts

do determine that a right to privacy could be breached, then it's not ideal if all you need to do to find out the details is buy the Sunday Herald. That negates the purpose of the interim injunction."

The MP also said there were cost implications of seeking court orders throughout different territories:

"If you have to seek injunctions in every separate jurisdiction, then that is surely going to add to the cost. If you talk to someone like Max Mosley – who has had to take action across the globe – you'll see it's an extremely expensive business."

Whittingdale said his colleagues had given serious consideration to the proposal, despite the lack of Scottish expertise on the committee. Of the 26 peers and MPs on the committee, only one came from Scotland. This was Falkirk MP Eric Joyce, who was recently fined for beating up four politicians in a Commons bar while drunk.

Joyce's problems stopped him from playing a role in the committee's final deliberations.


Frank Mulholland, Scotland's Lord Advocate, on a recommendation by the Westminster Privacy and Injunctions Committee that injunctions granted in English courts should automatically be enforcable in Scotland: ''Scotland has a different legal system and there will be different considerations, and there isn't a culture of superinjunctions in Scotland. "You should never assume that Scottish courts will blithely follow their English counterparts . ''It is a completely different system up here and I think people don't appreciate that down south. It is a different tradition here. Scottish libel and defamation cases are few and far between but it is routine down there."