Joan McAlpine: Personal attacks do nothing to protect Scots law

This verbal sparring is threatening to overshadow the serious issue of which court has supremacy

PAUL McBride QC knows a thing or two about mass hysteria. As a lawyer representing Celtic manager Neil Lennon, he is subject to hate campaigns, so when Mr McBride suggests a public figure has been "treated appallingly", and attacks on him are "borderline hysterical", we would do well to listen.

In this instance, Mr McBride was defending First Minister Alex Salmond, who has been attacked for comments he made in Holyrood magazine last week regarding the UK Supreme Court. There are two main areas of concern. One is the threat to the integrity of Scots law - a concern shared by most of the judiciary and at least two former Lord Advocates, Elish Angiolini and Lord Fraser of Carmyllie. Another is the perceived abuse of human rights legislation, particularly in Scotland, a concern shared by the vast majority of the law-abiding public.

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Many newspaper commentators and opposition politicians once shared these anxieties about the perverse interpretation of the European Convention of Human Rights. But all that has been forgotten in their rush to have a go at a First Minister whose popularity threatens the political arrangements they have spent a lifetime defending. This is about an old establishment fighting for its life.

The First Minister's critics will retort that his real offence is publicly criticising individuals: namely Lord Hope, the senior Scottish judge on the UK Supreme Court, and lawyer Tony Kelly, whose firm has pursued human rights cases - particularly on behalf of prisoners - that have resulted in chaos for the legal system and large bills for the taxpayer. To read the coverage you would think Lord Hope and Mr Kelly were innocents abroad - in fact, both pre-empted Alex Salmond's media comments by going into print first.

Last month, on 24 May, the UK Supreme Court ruled in favour of Nat Fraser, who was convicted of killing his estranged wife Arlene, controversially overturning the opinion of Scottish appeal court judges. The First Minister responded to this verdict with a very measured comment the next day in which he said we must defend "the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case". He went on: "The increasing involvement of the UK Supreme Court in second-guessing Scotland's highest criminal court of appeal is totally unsatisfactory."

This was fair comment. But then Lord Hope, on 27 May, decided to go for the man, not the ball. He took the unusual decision - for a judge - to criticise the First Minister, through the pages of a newspaper.Lord Hope raised the temperature by accusing the First Minister of "misunderstanding the law and the facts". His provocative comments have not received the attention they deserve.

So when the First Minister appeared on the BBC's Newsnight on 30 May and suggested Scots law was "potentially" in danger of been undermined by "Lord Hope's Law", the words "horses" and "courses" come to mind.

The First Minister's words were carefully chosen. We are told that English judges on the Supreme Court are not interfering with Scots law as they defer to their Scottish colleagues. That means Lord Hope delivered the Nat Fraser judgment on his own because Lord Roger, the other Scottish judge on the court, is gravely ill (although his name appears on the judgment). Nobody - certainly not the First Minister - is questioning Lord Hope's credentials. But justice is ill-served if one judge's opinion can overturn that of five colleagues.

And so to Tony Kelly, who is so offended by the First Minister's remarks he is threatening legal action. Prof Kelly is the brother of James Kelly, Labour's justice spokesman in the Scottish Parliament. I do not know if he is a member of a political party himself - he has every right to be, just as the rest of us have every right to ask. But he certainly mounted a very public, politicised and personal attack on Alex Salmond long before the First Minister commented about him to Holyrood magazine last week.

On 1 June, Prof Kelly wrote a "case comment" on the Nat Fraser judgement on the UKSC blog, which concerns itself with the Supreme Court. Prof Kelly appeared to dismiss the concerns Elish Angiolini put before the Scotland Bill committee when she said that the number of criminal appeals to the UK Supreme Court was undermining Scots law. Prof Kelly wrote that Dame Angiolini's concerns are shared by Alex Salmond, but he dismissed these in an intemperate personal attack, saying: "The First Minister has defined the debate in narrow, party political and nationalist terms. The most recent development was the announcement of yet another group to look into this matter." This group is in fact headed by the widely respected Lord McCluskey and includes learned legal minds.

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Paul McBride pointed out that Mr Salmond has every right to express views on the constitution of the country he had been elected to lead.

And Prof Kelly would lose in the court of public opinion - as well as slopping-out compensation for thousands of prisoners, his firm has won cases for murderer William Beggs, who claimed his human rights were breached by having mail opened and his success in the Cadder judgement has resulted in hundreds of cases collapsing. Of course Prof Kelly is clearly a skilled lawyer, and his supporters are entitled to argue that he takes up unpopular causes for unpopular people for moral reasons.It has been suggested that all this is an attempt by the SNP government to undermine the authority of the UK Supreme Court in case it challenges any future independence referendum. For the record, I have never heard the First Minister link the two matters.

A challenge to Mr Salmond's mandate by the Supreme Court will only rally Scottish opinion behind the SNP. The First Minister's recent comments are motivated only by a desire to ensure parity for Scots law, safeguard the public purse, stop dangerous people going free, and ensure victims get the same human rights as criminals. The Supreme Court's record here means there is no need to construct a campaign to undermine it. It is doing a fine job all by itself.

• Joan McAlpine is an SNP MSP for the south of Scotland