SNP dominating headlines for all the wrong reasons

The furore over the UK Supreme Court’s role in Scots legal decisions shows no sign of abating.  Thanks to an ill-tempered interview with Holyrood magazine, the First Minister fanned the flames of disquiet, and turned a small conflagration into a bonfire.  He now has one of Scotland’s leading QCs threatening legal action against him, has managed the rare feat of uniting the Law Society of Scotland and the Faculty of Advocates into releasing a joint statement advising against interfering with judicial independence, and even more remarkably, united the depleted ranks of the Opposition into comparative eloquence at First Minister Questions.  Despite his supposed untouchable status, he got a doing in that arena, his discomfiture made plain by the quite astonishing series of photographs published by the Scotsman on Friday.

Not bad for a week’s work.

A number of commentators have been picking over the bones of this week and pondering how we got here.  How has a First Minister, renowned for his tactical wiles, supposedly still basking in the glory of leading his party to an unprecedented parliamentary majority little over a month ago, managed to get himself in this mess?  The possible reasons for how are fascinating.

Kenneth Roy, at the very wonderful online news magazine, Scottish Review, suggests that the First  Minister is in need of a holiday.  The burd is inclined to agree. 

But the episode does hint at deeper flaws, suggested by David Torrance in his recent biography of Alex Salmond.  The First Minister is more than capable of flying off the handle, and of dogmatic adherence to his view being the right one.  At times like these, he consults few, trusting his own instincts or – wishing not to be deviated from his chosen path – avoids opinion that might seek to change his mind.  Many thought he had managed to bury these excesses, learning from past mistakes (the unpardonable folly utterance being one such), keeping them out of the public arena.   That Holyrood interview suggests there are chinks in his armour again, perhaps caused by the high of a second term government and riding the crest of a political and popular wave.

But could this episode with our learned friends actually be part of a broader SNP strategy, for it is not just the legal establishment that the SNP is heading into battle with?  Colleges are in the sights of the Cabinet Secretary for Education, as are university principals;  teachers’ terms, conditions and role are currently being challenged by COSLA in its contribution to the McCormac review.  The reform of police forces threatens to put the Justice Secretary on a collision course with local authorities as well as police rank and file.  On one level, the rush to outlaw sectarianism can be seen as an attack on the dominant face of aggressive maledom and its manifestation in support for Scotland’s two biggest football clubs. 

Are we at last seeing signs of the SNP taking on the bastions of institutional and establishment Scotland?  If we are, there’s some work to be done yet on the tactics of engagement if such battles are to be won. 

While the burd would be mildly ecstatic if this was the case, my anti-establishment feathers suitably preened, I doubt if last week’s events can be put down to anything quite so calculated.  There are hints that some in the SNP ranks are less than happy with all that has happened.  Some will be as bemused as the rest of us;  others with important policy agendas of their own to pursue might even be silently seething.

The last ten days have actually been very good for the Scottish Government.  Unemployment fell by 10,000 between February and April 2011, the seventh such recorded decrease in a row.  Youth employment is growing at a faster rate than elsewhere in the UK, and employment in construction rocketed by nearly 12% over the past year, while falling in the UK as a whole.  Our population is growing – births were down slightly in the first quarter of this year, but the equivalent fall in the number of deaths was much bigger.  In particular deaths from heart disease were 10% fewer. 

 The Scottish Government also announced that renewable heating will now be cheaper from the autumn thanks to a new scheme , proposals to take forward the Scottish Digital Network – a key plank in the SNP’s strategy of increasing Holyrood’s powers – were debated in Parliament and the manifesto commitment of 1000 additional police officers was maintained for the month of March.

It all adds up to a great big bag of good news, with the SNP Government displaying the comptence on the day to day issues that people so clearly voted for on 5 May.  But it was all largely obscured by the political drama engulfing the First Minister.  I doubt people – voters – will be overly impressed.  Perhaps, more importantly for the First Minister, his Cabinet team might also be miffed, having their dogged dedication to the longterm game plan of creating the right environment for a yes vote in the referendum, totally blown out of the water.  

Nor are they ego-less.  Four years as stars in their own right – it’s about the team remember? – will have bolstered their belief in their own abilities.  There is no doubt that Alex Salmond is that team’s greatest asset, but the events of the last week must have caused a few to start thinking in terms of liability too.  Not enough to embolden any of them to stand up publicly (or at least on the record) and criticise, nor even for tones of sorrow rather than anger to be expressed round the Cabinet table.  But sufficient to at least start a few of them muttering under their breath or in whispers to trusted colleagues. 

Of course, a by-election victory in Inverclyde, a major jobs investment, a suitably big piece of positive political theatre and our focus will switch elsewhere.   The First Minister will again be able to demonstrate his acumen and leadership qualities.  But the legal establishment is unlikely to want to forgive and forget, especially as the matter is far from closed.  The drama over the independence of Scots law still has more episodes to run, and no one seems inclined to back down yet.

The establishment always look after their own and the legal world is no exception:  his card will have been well truly marked and key figures will simply bide their time.  The First Minister must hope his Cabinet colleagues are not doing the same.


31 thoughts on “SNP dominating headlines for all the wrong reasons

  1. Alex Salmond is justly shaking the rafters because the ‘Supreme’ court is not sovereign and that is enough reason.

    Moreover, some Brit nats think they can stop the referendum using the ‘Supreme’ court.

    It’s time to shout.

  2. There is an excellent articvle in the Scotsman today by Joan McAlpine laying this issuout very clearly and also demolishing the distortion that Alex Salmond in anyway provoked an argument about this.

  3. I think the technical issue is that the UK Supreme Court has powers in terms of ECHR in Scotland that ECHR does not have in any other legal jurisdiction – and that the Strasbourg Court would not have.

    And, as part of that, within the UK it has powers in Scotland in terms of ECHR that it does not have elsewhere in the UK

    That is why it can open cell doors in Scotland but not in England. And it can overturn Acts of the Scottish Parliament but not Acts of the Westminster Parliament.

    That is not really a sustainable situation no matter which way you look at it.

  4. I am not being the slightest rude. You are continually neglecting to address the actual issue, which is being obtuse.
    There may be all sort of human rights issues in all sort of court cases all over the world but that is not the issue here and that is NOT what Salmond and MacAskill are taking issue with.
    Could we have a direct answer to a simple question……..

    Why is the Supreme Court operating in Scotland in a way that it is not allowed to operate in England?

    Unless you believe Lord Hope to be an idiot (and he is not) it has to be acknowledged that this is a very deliberate course of action and it is meant to subordinate Scottish law

  5. I am sorry. I will respond no more. You are being deliberately obtuse (or you don’t understand the arguement).

    Last word. Why is the Supreme Court not overturning English convictions?

    • I’m being neither – and stop being rude. I just don’t see that as the over-riding issue. I don’t necessarily agree with it but for me, it;s not the crux of the matter. I appreciate that it might be for you and others, and I respect that. Have the decency to respect that I have a differing opinion and am entitled to do so.

  6. I think everyone has got to stop with the technical analysis if you want to get to the heart of this.

    It became very clear early on that the Scottish Government might be on the wrong end of the techicalities but that matters not a jot when it is so difficult to explain those technicalities to the man in the street.

    There is a court in London which is doing things in respect of Scots criminal law it was never anticipated it would do. Who cares whether it is technically entitled to do so? Quite simply, it has taken it upon itself to ride a coach and horses through our independent legal system on the basis of what THEY decree are abuses of human rights.

    The floodgates are about to open. Luke Mitchell is next, then who? What is the next idiosyncracy of Scots due process that is going to be twisted into an abuse of human rights by a smart lawyer. And why would the Supreme Court turn down the opportunity to broaden its remit further by ruling against such a claim?

    I’m all for human rights but if the Supreme Court is left having to argue that Cadder and Slopping Out amount to abuses of human rights then they are not going to get much support from the jury of public opinion. And once you understand this point you will start to understand why the Scottish Government position on this is rock solid.

    • It only has the capacity to ride a coach and horses through Scottish court decisions if they are flawed. I do care about the technical analysis, not just the politics on this. You cannot pick and choose whom human rights apply to – if we do, then our own protection against abuses is shot. The difficulty is that its the Cadder and slopping out cases that garner media attention. Other equally important but less newsworthy decisions do not. And I’m not so sure the jury of public opinion is as cut and dried as some folk think – people want justice, they don;t like rough justice though.

      • No – they have the capacity if they say court decisions are flawed. Even if 7 High Court Judges in Scotland say they are not.

        And because leave to appeal is not required from the Scottish courts, Scots Law is completely at the mercy of an institution which, like any other institution, will attempt to grow their power and influence. And the way they can do this is by stretching the interpretation of human rights law to breaking point and beyond.

        This is not what is meant to happen. Scots Law is being rewritten in front of us by an institution that is not accountable in any way to Scotland. That is what the public at large will care about and what all the technical arguments in the world cannot justify.

  7. If I might be allowed to put this matter in simple terms.
    The issue is NOT this particular case. There are lots of questionable verdicts all over the world due to the far from infallible nature of human endeavour.
    The issue is the principle.
    The simple fact is that UK “Supreme” Court is operating in Scotland in a way it is certainly not permitted to operate in England, Wales or Northern Ireland.
    It is operating in a way that even the European Supreme Court is not permitted to operate anywhere.

    This is an attempt to take overall control of the hithertoo independent Scottish legal system as guaranteed by the Treaty of Union.
    This is being done by the expedients of utilising the very obvious shortcomings in an individual criminal trial, the naivety of many commentators who are looking at that and missing the point of principle and the utilising of a loophole which is allowing judgements in civil law to be manipulated into a use that was never the intention.

    It may well be the preamble to an attempt to interfere in a Scottish constiututional referendum.
    Just let them try

    • “The issue is NOT this particular case”

      Oh really? So why has Salmond lost his cool over this particular verdict then? Why has MacAskill put his reputation on the line by making incrediblely dubious comments?

      “This is an attempt to take overall control of the hithertoo independent Scottish legal system as guaranteed by the Treaty of Union.
      This is being done by the expedients of utilising the very obvious shortcomings in an individual criminal trial”

      Yes the shortcomings of this trial was so obvious that every political party, every newspaper and every media outlet ignored those shortcomings until… well the Supreme Court gave their verdict. To everybody, Fraser was the architypal “We know he’s guilty but he’s just to slekit to get caught” defendant – yet the Police and the proscecutors could not put him away by fair means. Prehaps he is innocent, we do not know – and it is remarkable that a trial was able to take place originally given the bad press he recieved.

      In short, this issue is about a criminal law system that is not fit for purpose.

      • Agree wholeheartedly – the failure of the Scottish government to stand up to the legal establishment at home and reform Scots law to close these loopholes is costing us a fortune in legal aid for these Supreme Court appeals and in defending such actions. All of it money that would be better spent elsewhere.

  8. The problem is that it is all so complex that very few of us understand it. And the SNP’s opponents tend to make the case that if you don’t support the Supreme Court you don’t support human rights.

    But it is not as simple as that. I fully supported the end of slopping out for example. I don’t think anybody should be made to go to the toilet in front of another person. That is a breach of their human rights. So the judgement on that, in my view, was correct. It is a completely different matter however saying that, because of that judgement, the Scottish Government should now be made to pay out millions of pounds in compensation. That’s not about human rights, it’s about greed.

    The other thing that is really concerning is to learn that the Supreme Court could, if it chose to,overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 on the grounds that it breaches the human rights of the insurance companies. The Supreme Court has no power to overturn Westminster legislation but it can overturn Scottish Parliament legislation. If people aren’t concerned about that they should be.

  9. Interesting comment on radio Scotland the other morning. The supreme court may have the authority to rule on the referendum. They could rule it illegal and outside of the Scottish Parliaments authority even before it takes place.

  10. I’m sorry but everybody seems to be missing the most salient point. The UK “Supreme” Court can only intervene in appeals on England when the Appeal Court gives it permission to do so.
    England has many similar cases yet to date it has not intervened in any English conviction because it has not been given permissioin to do so. It is however intervening in and overturning Scottish convictions without any permission whatsoever.
    This is completely unacceptable.
    I liked the suggestion that Scotland should set up a Supreme Court situated in Edinburgh and start overturning English convictions without even the courtesy of bringing it intention to do to the English authorities. Even the European Supreme Court in Strasbourg cannot – I repeat , cannot – overturn conviction properly arrived at in any court in any European country. All it can do is refer it back
    It is only the Scottish cringe that seems to think Scottish law should be treated as inferior and its decisions invalidated by a court elswhere.
    This is not about “human rights”. It is about civilised society being well ordered because it adheres to properly constituted body of law and there is an enormous and dangerous anomaly here.
    And I repeat……….
    Lord Hope was well aware of what he was doing when he (not Alex Salmond) started this.
    I know this because Lord Hope himself pointed out the dangers to Scots law of this anomaly three years ago.
    I think everybody here should stop being so naive and recognise a political prank when it is sitting up in front of them.

  11. What you all seem to have missed is that unlike Lord David Hope, Alex Salmond is an elected member of parliament.

    By speaking out as he did, Lord Hope has overstepped his remit, indeed, not only by speaking out but by taking decisions which undermine the Scottish legal establishment without the authority to do so. Essentially he has handed Westminster the reigns of the Scottish legal system and that, in my view, is a treasonable act. Thus David Hope ought to consider himself lucky not to have been dragged onto the Royal Mile and hung from a lamppost!

    Furthermore Burdy, The Scottish parliament made its decision not to join the ECHR under democratic process. Lord Hope, backed by London-based unionists, has surreptitiously and without once referring to our elected members, sold Scotland’s legal system down the Swannie.

    Mr Salmond’s response was to draw attention to this situation… one that many Scots would (should) be very uncomfortable with.

  12. “Time the grubby venality of a huge proportion of our legal establishment was blown apart.”

    Though I agree with that statement, I do wonder why Salmond has gone about attacking the Supreme Court by defending the grubby venality of “our” legal establishment, especially in regards to the witholding of evidence by the proscecution. As I have noted elsewhere (especially on my own blog. Dispatches From Paisley – thanks for asking:-)), Im sure that should the media put their mind to it, there will be miscarrages of justice with this technicality at the heart of it, for example the conviction of one Abdelbasset Al Megrahi (where the witholding of evidence by the proscecution is only one reason why his conviction is unsafe).

    I suspect that if Salmond is playing the long game, as I pointed out in my post on this, then I think he has started off by picking the wrong targets. If we are living in the first days of a “Better nation”, then he should have grasped the opportunity to iron out the human rights issues this has shed light on. Instead Samond has picked a fight that has made him look like he is against human rights and protecting those rights, making him look likr the defender of Edinburgh’s old fusty legal traditions – traditions that need to be led kicking and screaming into the 21st Century.

    • Couldn’t agree more. There is actually a contradiction at the heart of this – protesting at the Supreme Court’s role in defending human rights when the issue is that Scots criminal law has failed to reform itself to bring it into line with human rights legislation; while attacking the legal establishment for daring to declare its independence. I think there are bigger issues at stake but like you think this is the wrong fight and the wrong targets. People don’t like politicians grubbing around in the mud on issues that go over their heads. I would much prefer his taking on the legal establishment on issues that matter.

      As for the Snday Herald’s take on the threat to the pleural plaques legislation? Ain’t going to happen. They will not set aside a law at the whim of insurance companies. That is not the point of the UK Supreme Court.

  13. Burd

    I think that you are wrong about this issue, and there is a lot more to this Supreme Court ruling. The only way Alex Salmond was going to get this into the MSM was by megaphone diplomacy. What happens when the first murderer or rapist is released? What happens if they murder or rape again? Who do we blame them?

    Could you not foresee the headlines “Why was Alex Salmond unaware that murderers could be released” “SNP accused of opening the cells of murderers” What will now happen when the first murderer is released, and no one should doubt they will be, the SNP will rightly ask why did the unionist parties not support me when I tried to stop this?

    The murderer and rapists on our streets are one thing but The Sunday Herald has some interesting articles on the further long term ramifications of the UK supreme Court.

    As ever Iain Macwhirter has his finger on the pulse.

    I for one am glad that we have politicians in Scotland who will defend Scotland to the best of their ability.

    • Let’s wait for Tuesday’s rape conviction statistics before we determine who is letting murderers and rapists get away with it.

      And this isn’t about defending Scotland – I would much rather our politicians brought all spheres of law into line with human rights legislation, thereby taking on the legal establishment in all its inglorious hues, thereby affording Scottish people the same protections enjoyed elsewhere in Europe. Or would that not be defending the interests of the people of Scotland?

  14. I generally subscribe to the idea of cock up rather than conspiracy. I don’t think any government which wants to win a referendum, especially one as contentious as independence, really plans to pick fights. And certainly not repeatedly with numerous groups, which just makes your tenure as government seem unstable.

    This is not to say that the First Minister doesn’t have any validity to his case or that he (or colleagues) don’t have a problem with certain legal decisions, but his approach has certainly been wrong. Instead of calmly stating his views the manner in which he expressed his concerns means any substance has been lost amidst the shouting.

    Going forward the same lessons apply. A government can get away with picking one or two fights (as long as they are in tune with public opinion). However any more than that – even if they are right – and they do begin to seem a bit out of control.

    • I think you are probably right about cock-up though challenging the right of a UK court to have any say over Scottish legal matters clearly is part of the standing up for Scotland strategy that all points to the independence referendum. And clearly the SNP forgot just how entrenched and established our legal institutions are. They were never going to back down on something as fundamental as their independence. The shouting match has achieved nothing other than make folk raise eyebrows at Alex Salmond’s behaviour and tactics.

      I think there are many fights to be picked but they have to be the right ones as you point out and they have to be timed and framed to perfection.

  15. I really don’t think that this row is exercising the public as much as it bothers the political commentators. I would hazard a guess that the average Joe or Joanne is not too concerned that Lawyers and judges upset. In the run up to a referendum Salmonds main priority will be getting the electorate onside. Anything which undermines Scotland, Perceived or otherwise, will do the yes vote no harm.
    Prior to this rammy was there any concern from the Scottish legal establishment about the UK supreme court undermining Scottish Law?

    • The UK Supreme Court does not undermine Scots law – Scots law failure to implement human rights law has undermined it. Moreover, the Supreme Court has a legitimate role in being the final court of appeal on civil law matters and also on issues that are reserved – see my earlier blog on this, and many others’ articles and blogposts.

      Part of the problem here is that the SNP is not letting the facts get in the way of the narrative – that is bound to come unstuck.

      But I think you are right generally about joe and joanne public. What they do care about though is their FM making an arse of himself falling out with everyone – it’s not what they voted for. I

      • Supreme Court of the United Kingdom

        The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Irish law and Scottish civil law. my highlight.

        The Supreme Court acts as the highest court for civil appeals from the Court of Session in Scotland but the highest appeal for criminal cases is kept in Scotland.

  16. The SNP will win this battle – and is already winning it. The howls of the cash laden vested interest will fail to convince the public and the more this saga goes on the more the freeloading of huge sections of the legal profession at public expense will be exposed. I would love to see Tony Kelly take legal action against Eck.
    I will bet you now that he wont.

    Time the grubby venality of a huge proportion of our legal establishment was blown apart.

    When Scotland became the first country of the world to provide free legal aid to the poor the lawyers were obliged to provide a certain proportion of their work to this cause – FOR FREE. Changed days indeed

    On the more important consitutional issue Alex Salmond always plays the long game. That he usually wins it can be deduced from editorial in the the Sunday Herald today, from McWhirter writing in it and from revelations in today’s Sunday Express. A trap has been set and primed for the unionist legal establishment and they have hurtled blindly into it.
    Lay aside this fawning sychophancy our high legal officers imagine they are entitled to. Any vestigial respect many people retained for them was destroyed at the time of their collusion in the farce that was the trial at Cap Zeist
    There is no doubt in my mind that Lord Hope (“A traditional Scot in the Unionist tradition” – his own words) knew exactly what he was doing – or thought he did. What we have seen from him is a calculated political attack on the independence of Scots law.
    This (The UK “Supreme” Court) court can ride roughshod over Scots legal decisions but it can’t do so in relation to English legal decisions. This is the central point. It’s’ case collapses on this.
    He (LordHope) has bitten off more than he can chew.

    • Yours and Big Rab’s comments tend to side with the this is all part of the plan analysis – in terms of taking on a big part of the establishment that will stand in the way of the shift to independence. I tend to agree, and perhaps over optimistically, see a grander design in taking on other elements of the establishment/institutional Scotland.

      And I blogged previously about the perception vs the reality and what messages taking on the legal system would send to the electorate.

      And yet, I cannot see that it is all going according to plan. Whatever the long game, it’s not good for the FM to be on the ropes and portrayed as such. Nor do I think the electorate will wear much more – this is not what they voted for, much as it might satisfy the party loyal.

  17. And yet, and yet……Salmond wasn’t really taking on the legal establishment, he was playing populist politics and doing what he does rather well i.e. talking directly to the electorate.

    If I were to have read his comments not knowing their context or who had made them, they’d have found no small bit of sympathy.

    I personally do think it’s outrageous that millions have been spent compensating criminals for slopping out. Anybody here ever been wild camping? Where can we send the claim?

    Who will gain from Nat Fraser’s retrial? That’s right the legal profession. The verdict will almost certainly be the same as the original one. Still, nice to see human rights conventions helping the deserving again eh?

    Listen, Eck isn’t as green as he’s cabbage looking. The legal establishment *already* had him and the SNP in their sights. Could his ‘outburst’ have anything to do with Eck getting his retaliation in first if the UK Supreme Court decide that an independence referendum may not be legally competent?

    I wrote a piece on the issue from my own perspective which was perhaps predictably vigorously challenged by a lawyer of my acquaintance

    • Uhm, the verdict will not “almost certainly” be the same one. The evidence was withheld from the prosecution, not just the defence, and undermines the central point on which the prosecution case turned – that he removed the rings from his dead wifes body and placed them back in the house after reporting her missing.

      The prosecution would have proceeded very differently if they had known about the evidence, and could not have built the narrative they did.

      Whether he’s innocent or not the out come of the trial is not certain and it’s surely right that he has another.

  18. I hate to say it but some of the SNP’s behaviour over the past couple of week has reminded me of Labour at Westminster not so long ago, suggesting poorly thought-out legislation perhaps primarily because, in the short term, they could get away with it. I do hope the SNP won’t let power go to their heads. Far too much important stuff could suffer if they do, for very little real gain.

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