Fighting the law

Alex Salmond Alex Salmond has raised concern over the role of the Supreme Court in Scots law

Just why is Alex Salmond so exercised over the role of the UK Supreme Court in Scots Law?

For exercised he is, remarkably so - as witness his interview in the latest edition of Holyrood magazine.

He attacks Lord Hope, the Scottish judge who sits on the Supreme Court bench. He attacks the Scotsman newspaper (who had criticised him.) He attacks Tony Kelly, a prominent human rights lawyer.

Mandy Rhodes, the magazine's editor who conducted the interview, notes that the first minister is plainly ill-tempered with regard to the issue.

Why? Mr Salmond generally contrives to maintain an impression of sangfroid and composure, at least in public. He has trained himself to smile, with genteel detachment, rather than to growl.

Asked about the interview today, the first minister's spokesman said that the article spoke for itself. He had nothing to add.

Again, why the fury, why the invective? Is this not simply another governmental issue to address?

Further, is it not a governmental issue which has minimal traction with the wider electorate - and therefore unlikely to affect the first minister's popularity either way?

I think there are three reasons for the extent of the anger.

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Mr Salmond feels there is a genuine problem. But that does not explain the extent of his anger, the scope of his rhetoric”

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Those lie in the issue itself, the history of Nationalism and the revised outlook of the first minister himself in the aftermath of the election.

Firstly, the issue itself. Mr Salmond genuinely believes that he is standing up for Scottish rights - which he feels have been betrayed following assurances which were given when the UK Supreme Court was established.

It is, in short, a fundamental grievance. Like others, he heard the assurances that the UK Supreme Court would not intervene in the autonomy of Scots criminal law. He sees it so intervening.

He pays little heed to the insistence that its intervention has been minimal, even minuscule. A legal system, he argues, is either sovereign or it is not.

He pays little heed to the insistence that such interventions as there have been arise from the incorporation of European human rights legislation into the Scotland Act 1998.

The origin of the flaw, he argues, matters less than the demand for remedy.

So, point one, Mr Salmond feels there is a genuine problem. But that does not explain the extent of his anger, the scope of his rhetoric.

For that, we must turn to point two, the history of Nationalism.

From its earliest origins, Nationalism has been about defending and promulgating the fundamental, distinctive facets of Scots life.

Remarkable victory

The contemporary SNP is a sophisticated, election-winning political machine. But it is also heir to a tradition of "standing up for Scotland".

For the early Nationalists, that often meant culture or language as much as votes. It meant defending Gaelic, promoting Scots, enthusing about the modern Makars.

It also meant standing by the basics of Scotland which had been enshrined in the Act of Union; the Kirk, education, the legal system.

Of these, the Kirk was once the most zealously defended. That has tended to slip with the general decline in the influence and importance of religion. To some extent, the legal system takes its place.

For Alex Salmond, defending Scots Law is both visceral and atavistic. Visceral in that it comes from his passionate core. Atavistic in that it echoes back to the founding origins of Nationalism.

Lord Hope Supreme Court judge Lord Hope was singled out for attack by the first minister

In such circumstances, an attack on Scots Law - even the relatively minimal derogation of power which this particular issue represents - is translated into an attack upon the existence of Scotland itself. Indeed, Mr Salmond refers to such a stance in his interview with Holyrood.

Thirdly, there is the perspective adopted by Mr Salmond himself following his remarkable victory, his transition to majority power.

While stressing that he will continue to govern consensually, it is perhaps understandable that Mr Salmond experiences a certain feeling of superiority when he surveys public life in Scotland.

He would not be human if he did not tell himself: "I alone, Alex Salmond, have been chosen by the people of Scotland."

The next phase, of course, is to conclude that others have not been so blessed.

Again, in the Holyrood interview, Mr Salmond, while criticising Lord Hope, draws attention to the judge's lack of an electoral mandate.

Mr Salmond is very far from the first elected politician to complain about the judiciary.

Political complaint

In practical terms, it seems unlikely that Mr Salmond will get all that he wants with regard to this issue.

Firstly, the UK government in the shape of the Scotland Office may be emboldened to resist him when perhaps - but only perhaps - a more modestly pitched appeal might have had more success.

That said, it seems probable that Mr Salmond's rhetoric will encourage the Supreme Court itself to be yet more minimalist still in the scope of its involvement in Scottish criminal law involvement.

Equally, it should be borne in mind that this is very far from an ordinary political complaint for a Nationalist leader.

Yes, it is seemingly about dry legal structures. But for Alex Salmond, the Nationalist with the biggest mandate in his party's history, it is fundamental.

Brian Taylor, Political editor, Scotland Article written by Brian Taylor Brian Taylor Political editor, Scotland

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  • rate this

    Comment number 213.

    well brian anyone watching today's first ministers questions ,after listening to the unionist trio demand an apology on behalf of supreme court judge lord hope,we would be forgiven for thinking they got the script from this thread,"coincidence"/they are still showing Westminster credibility as they keep on political point scoring for their masters they will ruin devolved democracy in Scotland!

  • rate this

    Comment number 212.

    208.sid_ts63, your point?, civil matters have for the last 300 years been heard finally at the law lords (now SC), nothing new going on

  • rate this

    Comment number 211.

    The UK Supreme Court must be suspected of judicial activism as regards Scottish cases.That is,rulings based on political considerations rather than on existing law.Even if not true,the perception is there,and so a fresh start with the ECHR taking over direct jurisdiction in Scottish human rights appeals would be better all round.

  • rate this

    Comment number 210.

    Brian and All at BBC Scotland,
    Where are the moderators when they are needed? These boards have deteriorated to P5 level to be found in primary Schools all over Scotland, the name calling and ignorant abuse is doing no one any good.
    I do believe that the Trustee’s should be asked to bang some heads together now.

  • rate this

    Comment number 209.

    continued from above ! they are trying to use the UK SC to overturn what the Scottish parliament passed so they don't need to pay out!


Comments 5 of 213



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