Kenny MacAskill stands accused of jeopardising British justice

Published on Wednesday 1 June 2011 17:14

THE political row over the role of the Supreme Court in Scots law has intensified, with the UK government suggesting SNP justice secretary Kenny MacAskill has jeopardised the independence of the judiciary in his comments on the affair.

Lord Wallace of Tankerness, who as Attorney-General is the UK government's leading Scottish legal officer, hit out at comments by Mr MacAskill that he could pull the Scottish Government's funding of half a million pounds a year for the London-based Court.

In comments reported yesterday, Mr MacAskill declared: "He who pays the piper, as they say, calls the tune", adding that he would not be using Scottish Government funding to pay for "ambulance-chasing courts".

His comments came after the London-based court - which considers breaches of EU human rights laws within the UK - ruled that Nat Fraser, jailed for murdering his wife Arlene, had not received a fair trial because his rights had been breached.

The judges said the Scottish Courts must now decide whether he should be tried again, placing his original conviction in doubt.

In his first intervention into the row last night, Lord Wallace, Scotland's former deputy first minister, said: "As a lawyer I feel strongly that a fundamental pillar of our society is the rule of law and the independence of the judiciary is central to that.

"Surely Scottish ministers are not telling the courts what to do when they talk about pipers and tunes? I certainly hope not."

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Lord Wallace launched a staunch defence of the Supreme Court, saying its role in Scottish cases had been backed by his own expert group, chaired by Sir David Edward, a former judge of the European Court of Justice.

"It reached a unanimous recommendation that there should be an appeal to the UK Supreme Court where there were matters of (the European Convention on Human Rights] and EU law," he said.

He added: "The Supreme Court has made clear as recently as last week in the Fraser ruling that the High Court in Scotland remains the court of last resort on criminal matters.

"I sometimes wonder if those who are the most vociferous have read these rulings."

Lord Wallace's comments appear to be aimed at both Mr Mac-Askill and First Minister Alex Salmond, who this week warned that the Supreme Court's power was such that it could "open cell doors and allow people to walk free".

An SNP spokesman last night said the party "absolutely rejected" Lord Wallace's comments, saying Mr MacAskill's threat had been overtaken by events, with ministers having now decided to hold a review of the court's role.

SNP ministers say it should be a Scottish court that decides on human rights cases, not one based outside Scotland.

However, other legal figures last night backed the status quo, and accused Scottish ministers of playing politics.They pointed out that two former lords justice general of Scotland, Lord Hope and Lord Rodger, sit on the court. Former Lord Advocate Lord Boyd said: "I am a Scots lawyer and I am proud of Scots law, but there are people who are sort of legal nationalists, who believe in the sanctity of Scots law.

"My own view is that the legal system must serve the people. It is not the domain of the state, or nationalism, and it must grow and evolve to reflect the highest of international standards."

Professor Peter Duff, a criminal justice expert at Aberdeen University, said: "The SNP are alleging that we have English judges foisting alien concepts upon us and of course that's not true and the SNP knows that.

"The judgments of the Supreme Court concerning Scotland are always given by Lords Hope and Rodger as the Scottish judges. The English judges simply fall into line."

Scottish advocate Niall McCluskey added: "Kenny Mac-Askill knows this is nonsense. He knows Lord Rodger and Lord Hope are two very fine jurists indeed. It has to be seen as naked political opportunism."

Lord Wallace also warned that without the UK Supreme Court, cases would have to go direct to Strasbourg, which he claimed had a backlog of 140,000 cases.

However, Mr Salmond said: "We have the situation where a court in another country (England] is looking at intervening aggressively in our judicial system." He said by removing the Supreme Court from Scots law, "a substantial layer of procedure would be removed".

A spokesman for the Advocate-General said: "The Advocate-General believes that the people of Scotland should have their human rights protected to the same level as those in other parts of the UK.

"Scotland benefits from the fact that the two Scottish Supreme Court justices are vastly experienced in Scots law. None of the almost 50 judges in Strasbourg is from Scotland and only one is from the UK."