Peter Jones: Salmond picked the wrong fight

The First Minister may need the Supreme Court to uphold the legitimacy of his referendum plans

PICKING fights with the UK Supreme Court may yet turn out to be a serious error of judgment by Alex Salmond. Bizarre though it may seem, it is possible that he may have to call on the court to support his government's right to hold an independence referendum. How embarrassing would that be? And where would such an action leave his other assaults on the court for interfering with Scottish justice?

Mr Salmond's knowledge of the law, as he has been good enough to admit, is not encyclopaedic. He has already been guilty of getting his legal facts wrong. To pick one instance, on any criminal case where there is an appeal based on a potential violation of a convicted person's human rights, he has stated his preference for such an appeal to be heard in the European Court of Human Rights rather than the UK Supreme Court.

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This was on the grounds that "the Strasbourg court, unlike the Supreme Court, does not quash convictions. It doesn't unlock prison cells." This is untrue. Neither court quashes convictions or unlocks prison cells, but both courts' verdicts can have the effect of eventually releasing previously convicted people.

The case of the M25 Three, as three men who were convicted in 1990 in the English courts of murder, rape, and robbery became known, makes the point. Their appeal was rejected by the Court of Appeal and they went to the European Court in 2000. It found the convictions to be "unsafe" because one of the prosecution witnesses was a paid police informer who believed he would get a reward if the three men were jailed. This was a breach of the right to a fair trial.

The case was sent back to the Appeal Court in London, where judges had no option but to quash the convictions even though they made it plain they thought the men were as guilty as sin. "The evidence against all three was overwhelming," they said, adding: "This is not a finding of innocence, far from it."

It is arguable that if this case had been heard by the UK Supreme Court as it is presently constituted, the men would not have been freed. Its verdicts, as far as I have read, test whether a human rights defect in the prosecution case might have caused the jury to reach a different verdict. This test was used in the Nat Fraser case, but does not seem to have been applied by the European Court in the M25 Three case.

If the court had done so, then it seems probable, given what the Appeal Court judges said, that the men's convictions would not have been ruled "unsafe".

These subtleties - that the rights of victims of crime might be better protected by the UK court - are being completely lost in the political furore kicked off by Mr Salmond. I'll be interested to see if they are picked up by the review group he has appointed and which is due to report soon.

But I suspect the political debate will dominate, not least because it is highly probable that Mr Salmond's constitutional engineering plans will end up in the Supreme Court. Though it is not, strictly speaking, a constitutional court, it does have powers to adjudicate in constitutional disputes such as, for example, whether the Scottish Parliament or government have exceeded their powers.

Jim Sillars, a former SNP MP and party deputy leader, with his usual unerring eye for potential points of conflict where the law comes into contact with politics, has pointed out an interesting scenario in a Holyrood magazine article.

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Suppose, he asks, that a Glasgow lawyer (I can't imagine who he is thinking of, but I suspect his initials are D and F) goes to the Court of Session and argues that the Scottish Parliament cannot legislate to hold an independence referendum because constitutional matters are reserved to Westminster.

Suppose further, he suggests, that the Court of Session agrees with the Glasgow lawyer and strikes down the referendum legislation as being outwith the parliament's powers. "Where would that leave the Scottish Government?" asks Mr Sillars.

"With only one option - to lodge an appeal to the Supreme Court where it says that the judges know little about Scotland and are mere ambulance chasers. I am sure their Lordships would, whatever their personal feelings might be about being insulted, judicially ignore the contempt that has flowed towards them from the First Minister and his Scottish justice colleague. But what an embarrassment for the SNP if they had to appeal to the court they have denigrated."

Now, Nationalists may comfort themselves that this scenario, given that the UK government has said it won't stand in the way of Mr Salmond holding an independence referendum, is unlikely. But there is a whole raft of questions facing the Scottish Government on which it might be similarly challenged in the courts.

The wording of the independence referendum is one where the UK government clearly does have objections to some of Mr Salmond's mooted questions. So might a Glasgow lawyer. This is even more pertinent as the Electoral Commission, which would normally rule on such matters, is legislatively barred from having anything to do with Scottish referendums.

Mr Salmond has thought of that and has proposed setting up an equivalent body, the Scottish Referendum Commission.But that, too, is challengeable in the courts as potentially beyond the Scottish Parliament's powers because it clearly would be a body with a role in an attempt to change the UK constitution. Indeed there are probably a good half-dozen issues that have the potential to end up in the Supreme Court.

Despite Scottish Government denials, I think that this is what is at the root of Mr Salmond's attack on the court. Others agree. Adam Tomkins, professor of law at Glasgow University and a constitutional law specialist, thinks that Mr Salmond is attempting to delegitimise the Supreme Court in case it delegitimises his referendum.

If so, Mr Salmond may come to regret his action, for he may need the Supreme Court to uphold the legitimacy of his political plans. Indeed, he looks to have broken one of the cardinal rules of politics. You do not embark on a course of action, especially one which takes on lawyers and judges, without thinking through all the possible ramifications and consequences.

He could, I suppose, go to his preferred adjudicators, the European Courts. In that case, he'll be collecting his pension before he gets a verdict.