The behaviour of the Cabinet Secretary for Justice, Kenny MacAskill MSP, in relation to the UK Supreme Court has been quite frankly disgusting of late and most certainly is not befitting of a man of his intellect and position.
Today I read about his latest outburst over the matter which can only be described as personal attacks against the Justices of the UK Supreme Court. I have written recently on the position of the UK Supreme Court in relation to Scots law and so will refrain from making the same points again. Here I intend on focusing more on the very fabric of democracy: the rule of law, the separation of powers and the need for the executive and legislature to be kept in check.
Having an independent judiciary that upholds the rule of law is vital for the survival of any democratic nation. Without it too much power lies in the hands of the executive and legislature and that can result in disastrous consequences for the citizens of a state. It is vital that the judiciary are able to hold the executive to account when upholding the rule of law.
Courts make decisions that parties to cases are unhappy with; it is part of the way in which justice operates. It is almost impossible for any Court to decide a case where both parties leave pleased with the result. There will always be one winner and one loser and the loser will feel as though they have been hard done by. What is quite irresponsible is for the Cabinet Secretary of Justice to make public comments which criticise judges personally. It is appropriate that the Executive criticises the judgment of the Court where it disagrees with it and explains the reasons why it disagrees with it, but when members of the Executive start making what appear to be personal attacks of judges in public then problems arise in relation to the relationship between the Judiciary and the Executive.
In any democracy it is essential that the Executive and the Judiciary have a good working relationship. That of course does not mean that the Executive is in a position to exert any influence over the Judiciary. The executive is subject to, like everyone else, the rule of law and on occasion the executive will lose before the Courts. The role of scrutinising the executive and holding them to account falls to the legislature and the judiciary. Given that in our system the executive forms part of the Legislature the only real independent scrutiny of the executive that exists comes from the judiciary. That does not detract from the work the legislature does in holding the executive to account, but it is an important point to note.
Anything that threatens the good working relationship between the Executive and the Judiciary is a danger to the very fabric of democracy and it is quite frankly disgusting behaviour for a senior member of the Executive to launch a personal attack on the justices of the Supreme Court.
There is nothing wrong with having a constitutional debate in the way that the current Scottish Government are seeking to do, but when that debate starts descending into personal criticism of members of the judiciary (either individually or collectively) then things have gone too far.
The Cabinet Secretary should be thoroughly ashamed of himself and should make a public apology to the justices of the UK Supreme Court. He should also refrain from making such attacks on the judicial arm of the State in the future, it simply is not fitting for a member of the Scottish Cabinet to act in such a way.
prout de jure 
The judiciary while being independent cannot be beyond criticism. Judicial activism worries me, because of its unaccounability. The Supreme Court frankly terrifies me as they can create significant precedent, in a legal system many of them are unfamiliar with, and there is no accountability. I am no nationalist but this erosion of the Scottish Legal System is problematic.
I agree that the Judiciary as a body should not be beyond criticism, but childish attacks that could be viewed as personal attacks on the members who make up the Judiciary are not appropriate from the Cabinet Secretary (or indeed any member of the Executive).
The speech delivered by Lord Hope to the Scottish Young Lawyers Association annual lecture was very interesting in terms of how the Court actually goes about dealing with the Scottish cases that comes before it. Indeed, based on what Lord Hope had to say, there does seem to be a respect amongst the non-Scottish Justices for their Scottish colleagues when cases come before the Supreme Court. (You can read the speech here). The text doesn’t adequately convey the obvious passion that Lord Hope has for the independence of the Scottish legal system. I felt that really came across when Lord Hope spoke.
The decisions that Salmond and MacAskill are focusing on here [Cadder and Fraser] would not have been different had they gone from straight to Strasbourg from Edinburgh, the only difference that would have been is the decisions would have taken much longer to reach as it takes years for the ECtHR to issue a decision. In Fraser the High Court of Justiciary was plainly wrong to decide that there were no Human Rights issues there. The non-disclosure of facts that undermined the cornerstone of their case clearly has an impact upon the ability of the accused to gain a fair trial (obviously a public debate on the guilt or otherwise of Fraser is inappropriate as further proceedings may take place). In terms of Cadder the ECtHR jurisprudence was very much against Scotland and it was clear by early 2010 that the law was going to have to change, either as a result of the UKSC or the ECtHR.
At least in terms of the UKSC there are two Scottish Justices who bring a wealth of experience and knowledge of the Scottish system to the Court (both having served as Lord Justice-General). In the ECtHR there isn’t a single judge with knowledge of Scots Law.
Don’t particularly disagree with anything you have said except all of it 😉
Surely we want to allow our politicians to be able to hold the judiciary to account, and that must include the most *ahem* ‘qualified’ among them, ie the executive. Obviously this should not fall to personal slanging match type discussion but reasoned and well made points.
The issue at stake here is not Cadder or Nat Fraser, as you point out no different decision would have been made. But rather the erosion of an independent legal system. There is also a big question over how binding we need to see ECtHR as and whether the nasty HR Bill is worth the paper it is written on! But that is for another day,
I see no good reason why the people living in this country should have their delivery of justice subcontracted to another country. Why should justice in Scotland not be administered by Scottish Courts? Anything else is preposterous.
Let’s look at this logically without getting all Nationalist. If the UK Supreme Court is removed from the equation once a decision is made in Edinburgh in terms of Human Rights that is not the end of the story, as many are suggesting it would be. Since 1966 anyone in the UK has had the ability to take their case to the European Court of Human Rights. A case comes under the terms of reference to that Court if the applicant has exhausted all domestic remedies available to them. So, instead of having a Court which has two very eminent Scottish Judges sitting it would go to a Court where not a single judge has knowledge of the law of Scotland. To me that is preposterous.
I’m all for logic but it can become distorted when projected through a British nationalist lens. In short, you appear to be presenting the choice as between London and Strasbourg only. Thanks but no thanks. I’m better pleased to have justice delivered by the Scottish Courts.
It’s not as simple as you present it to be. While Scotland remains part of the UK and the UK remains a signatory to the ECHR then regardless of how many courts you have inside of Scotland eventually cases will go to ECtHR as once all domestic remedies are exhausted it falls within the terms of reference of the ECtHR. The High Court of Justiciary lost its position as the Court of last resort in 1966 (arguably it did so in 1707 with the Act of Union not explicitly excluding the House of Lords in relation to Scottish Criminal cases and that it only continued in that position up until 1966 as a result of the House of Lord’s own decision not to hear cases and an Act of the UK Parliament)