Leader: Practical solution to justice row would not please SNP

IT WOULD be the deepest of ironies were the SNP government's onslaught on the UK Supreme Court to be resolved by aligning the current appeals system in Scotland with that now prevailing in England. But that could well be the outcome of the deliberations of the expert panel set up by First Minister Alex Salmond to review the operation of the Supreme Court after a torrid week of criticism that has generated more heat than light.

At the very least, the panel should help cool passions after a series of attacks in which Mr Salmond and his justice secretary Kenny MacAskill were widely seen to have overplayed their hand, first by a direct attack on the Scottish judge Lord Hope, and second by implying that the Scottish Government might withdraw funding support for the court. The first was widely seen to be an over-the-top, ad hominem attack on a senior Scottish judge, while the second smacked of executive bullying of the judiciary. The result has been a powerful backlash from within the Scottish legal establishment against the administration's critique of the Supreme Court.

Brian McConnachie, QC, and former Liberal Democrat leader Sir Menzies Campbell have added their voices to the criticism. Mr McConnachie described Mr MacAskill's comments implying a withdrawal of funding as "greatly ill-advised", while Sir Menzies accused him of "petulance". Meanwhile, a survey of Scottish lawyers by Scottish Legal News found three out of four opposed to the administration's criticism of the Supreme Court, while a majority also oppose appeals going to Strasbourg rather than London.

Nevertheless, there is considerable unease over the ambiguous position in which the authority of the Scottish appeal system has now been left. The Nat Fraser case has established an uncomfortable precedent under which criminal cases can end up being appealed twice. Scottish Labour lawyer Ian Smart is surely right to question how we have arrived at a second layer of appeal that was never anybody's intention.

Particularly telling points have been made by Paul McBride, QC. He expects the interim report of the expert panel, due in early July, to recommend Scottish courts be given parity with their counterparts in England, which would effectively shut the door on future cases such as Cadder and Fraser. The High Court in England can filter appeals to the Supreme Court and can refuse an appeal unless a case can be made that a constitutional matter or serious point of public interest has arisen.

It would seem a reasonable compromise that the appeals process in Scotland should allow for appeals under ECHR but also enjoy the same protections as the English system from opportunistic second-guessing by defence lawyers. Bringing Scots law "into line with England" is hardly a battle-cry we will hear from the SNP administration. But this would seem a practical way out of the morass.