0:00:09 > 0:00:13Tonight, it is the independence of the Scottish legal system under
0:00:13 > 0:00:17attack? The legal establishment, Scottish government, Holyrood
0:00:17 > 0:00:21opposition and the Scotland of this are fighting over who is the
0:00:21 > 0:00:26guardian of Scots criminal law and who gets the last say. We talked to
0:00:26 > 0:00:31the person who set up the Supreme Court. When lawyers attack a
0:00:31 > 0:00:34politician it is unlikely anyone will care too much. Neither
0:00:34 > 0:00:41profession wins a popularity contest. But the argument between
0:00:41 > 0:00:47the First Minister and the deputy has led some to question whether
0:00:47 > 0:00:51the foundations of democracy are under threat. The Scottish Law
0:00:51 > 0:00:56Society has urged Alex Salmond not to interfere with the working of
0:00:56 > 0:01:01the courts. Should we care? What is it all about? This is our political
0:01:01 > 0:01:05correspondent. Alex Salmond may have set out to
0:01:05 > 0:01:10defend the independence of Scottish law, but he has ended up having to
0:01:10 > 0:01:19defend himself. The First Minister woke to find solicitors and
0:01:19 > 0:01:25advocates had joined forces against him. It is fair to say that the
0:01:25 > 0:01:30profession was upset and alarmed by the type of comments being made
0:01:30 > 0:01:39about the senior member of the judiciary. They are referring to
0:01:39 > 0:01:44interfere in Holyrood magazine. interfere in Holyrood magazine.
0:01:44 > 0:01:47Alex Salmond tells them Lord Hope's judgments are extreme. Alex Salmond
0:01:47 > 0:01:52judgments are extreme. Alex Salmond was particularly angry at this.
0:01:52 > 0:01:55issue as to whether the current procedure violates the right to a
0:01:55 > 0:02:02fair trial is one of law and should be dealt with by the courts and
0:02:02 > 0:02:06Scottish ministers. Lord Hope led the UK Supreme Court ban all but
0:02:06 > 0:02:13ruled against Scottish police being able to question suspects without
0:02:13 > 0:02:17advice. One case led to hundreds of prosecutions being abandoned. And
0:02:17 > 0:02:26the Supreme Court overturned a decision by Scottish courts in the
0:02:26 > 0:02:30case of a businessman convicted of murder. Holyrood is enshrined in
0:02:30 > 0:02:35law that independence of the judiciary including the Supreme
0:02:35 > 0:02:41Court. At questions, Alex Salmond was accused of letting his
0:02:41 > 0:02:45arrogance but that at stake. criminal law of Scotland is a
0:02:45 > 0:02:50matter of public concern. It was not meant to be second-guessed in
0:02:50 > 0:02:56the way it is at the moment. This is a public issue, compensation
0:02:56 > 0:03:01payments paid to criminals in Scotland, and a liability not
0:03:01 > 0:03:06existing in other jurisdictions. These are points of public concern.
0:03:07 > 0:03:16As well as a right of free speech, we have a duty to articulate the
0:03:16 > 0:03:19public concerns and try to bring a proper remedy. The First Minister
0:03:19 > 0:03:25attacked at a lawyer for representing people because they
0:03:25 > 0:03:30are vile. His Justice Secretary threatened to cut off funding from
0:03:30 > 0:03:37a court because he did not like their judgments. I do not like some
0:03:37 > 0:03:45of their judgments, also. But while people have been right so is the
0:03:45 > 0:03:50price we pay for -- us all having those rights. While people being
0:03:50 > 0:03:54defended in court is the price we pay for our rights to be defended.
0:03:54 > 0:03:58We made the laws. But the independence of the judiciary is
0:03:58 > 0:04:07the price we pay for the freedom to do that. Does the First Minister
0:04:07 > 0:04:15agree and Willie retract his statements? There was no apology to
0:04:15 > 0:04:19Labour. -- will he. The First Minister's hours -- outburst has
0:04:19 > 0:04:23obscured the real issue. It has made a laughing stock of Alex
0:04:23 > 0:04:28Salmond and diminished the Office of First Minister in this
0:04:28 > 0:04:36Parliament. Will he apologise for bringing the Office of First
0:04:36 > 0:04:44Minister into disrepute? No. apology again. This time, the
0:04:44 > 0:04:48Liberal Democrats had a go. I want to give him a final chance. Will he
0:04:48 > 0:04:57have withdrawn these outrageous remarks against our senior judges
0:04:58 > 0:05:01and lawyers? The answer is the same I gave a few minutes ago. This
0:05:01 > 0:05:06afternoon, the Sheriff of this court questioned whether he needed
0:05:06 > 0:05:15to ask Alex Salmond for his view before deciding a case. It may have
0:05:15 > 0:05:20been a joke, but it shows the potential for this to question the
0:05:20 > 0:05:26political judgment of the First Minister. We are joined by a Lord
0:05:26 > 0:05:32Charles Falconer and in Edinburgh, for the SNP, the chairman of the
0:05:32 > 0:05:37Justice Committee. Lord Charles Falconer, are these cases are
0:05:37 > 0:05:42undermining the independence of the Scottish judicial system? No. I
0:05:42 > 0:05:46thought the Scottish legal system accepted the European Convention on
0:05:46 > 0:05:52Human Rights. That is the basis on which the Scottish Parliament was
0:05:52 > 0:05:57set up and MPs warmly embraced. I cannot understand why the First
0:05:57 > 0:06:03Minister is attacking distinguished judges up for giving effect to the
0:06:03 > 0:06:07convention. The difference between England and Scotland is that in
0:06:07 > 0:06:10England, if you want to go on a human rights basis to the Supreme
0:06:10 > 0:06:15Court you have to have the permission of the Court of Appeal.
0:06:15 > 0:06:20In Scotland, you do not have to. There is an issue here. It has
0:06:20 > 0:06:27always been the case that Scottish Criminal Appeals should stop in
0:06:27 > 0:06:30Scotland. But everybody accepts that in exceptional cases European
0:06:30 > 0:06:36Convention are right some will be determined by the Supreme Court,
0:06:36 > 0:06:42whether from Scotland, England, in civil or criminal matters. Nobody
0:06:42 > 0:06:48has disputed this until Alex Salmond began to attack individual
0:06:48 > 0:06:52judges for applying the law in the context of two criminal cases. I do
0:06:52 > 0:06:57not understand why he says it is unexpected and I do not understand
0:06:57 > 0:07:05why he says it undermines the principles of Scottish criminal law.
0:07:05 > 0:07:14One is he attacking judges? Can I address the question that Lord Hope
0:07:14 > 0:07:17in October last year did not envisage that it would in any way
0:07:17 > 0:07:25undermine the criminal justice system in Scotland. I am not saying
0:07:25 > 0:07:30the UK Supreme Court is acting otherwise but it was not seen by
0:07:30 > 0:07:35him. Lord Faulkner did not answer your question about discrepancies
0:07:35 > 0:07:40that exist in England and Wales. If leave to appeal to the UK Supreme
0:07:40 > 0:07:45Court is made in their courts and refused, unless it can be shown it
0:07:45 > 0:07:50is certified of some huge public interest, they cannot appeal to the
0:07:50 > 0:07:57UK Supreme Court. That is not the case in Scotland. That is a base to
0:07:57 > 0:08:02start at. It is not a level playing field. That is not the basis on
0:08:02 > 0:08:09which Alex Salmond attacked Lord Hope. He described his judgments as
0:08:09 > 0:08:14extreme. Can I just say that if we are looking at recent issues with
0:08:15 > 0:08:22in the parliament, that is historic. From an article written before the
0:08:22 > 0:08:27setting up of eight -- an important of review group. An issue shared
0:08:27 > 0:08:37across the spectrum of the legal profession. That is chaired by
0:08:37 > 0:08:42honourable people. We have a... We have that substantial people. If I
0:08:42 > 0:08:47may finish... That review will come forward with its findings before
0:08:48 > 0:08:53the Scottish Parliament goes into recess. That is the issue at stake.
0:08:53 > 0:08:59The suggestion appears to be that Lord Hope is doing something... You
0:08:59 > 0:09:03can argue about the nature of the law. Alex Salmond seems to suggest
0:09:03 > 0:09:10in his statements that the consequences of his judgments are
0:09:10 > 0:09:17extreme. To be referring -- inferring that a judge is acting
0:09:17 > 0:09:23beyond his powers. Lord Hope is not behaving improperly, is he? I speak
0:09:23 > 0:09:30for myself, not as chair of the Justice Committee. I say that the
0:09:30 > 0:09:37UK Supreme Court is acting in a certain way. Nobody, including Lord
0:09:37 > 0:09:42Hope last year, did not concede to the consequences to the Scottish
0:09:42 > 0:09:46justice system, which has been independent for centuries. Can I
0:09:46 > 0:09:52pick up the point you are making. What do you mean by suggesting Lord
0:09:53 > 0:10:02Hope is in some way infringing the independence... I never said that.
0:10:03 > 0:10:03
0:10:03 > 0:10:10I thought you were worried about the independence of the system.
0:10:10 > 0:10:17said at that stage he did not concede the UK Supreme Court
0:10:17 > 0:10:27impinging on Scottish criminal law. That was his position then. Even he,
0:10:27 > 0:10:30
0:10:31 > 0:10:38until faced with that all cases did Is there not an obvious solution to
0:10:38 > 0:10:43this? What will not be done in the amendment is remove the anomaly. Do
0:10:43 > 0:10:48you not just say that the code of Appeal in Scotland should allow for
0:10:48 > 0:10:53people to apply on human rights grounds to the Supreme Court in
0:10:53 > 0:10:57London and would that solve the problem? I have not got any problem
0:10:57 > 0:11:03with the proposal Jim Wallace is suggesting. But he is not
0:11:03 > 0:11:08suggesting that. Let me declare. I have not got a problem with the
0:11:09 > 0:11:15procedural debate. What is misleading about the debate which
0:11:15 > 0:11:19has been perpetrated by Alex Salmond is that he is trying to say
0:11:19 > 0:11:23that there is something wrong with the substantial decisions that have
0:11:23 > 0:11:27been reached and he is saying there is something wrong with the Supreme
0:11:27 > 0:11:32Court in the United Kingdom dealing with human rights issues. There is
0:11:32 > 0:11:42nothing wrong with them doing that. Even when they deal with Scottish
0:11:42 > 0:11:46criminal law. There is nothing wrong with a Scottish judge...
0:11:46 > 0:11:50point that it Scotland is going to complied with the European Court of
0:11:50 > 0:11:55Human Rights, I understand he want independence but it has not got
0:11:55 > 0:12:02that at the moment, but there has to be a mechanism whereby a human
0:12:02 > 0:12:07rights cases can be transferred and having a role for the Supreme Court
0:12:07 > 0:12:13is a pretty good way of doing that. It arguably discriminates people in
0:12:13 > 0:12:19England. People in Scotland can go behind the back as it were of the
0:12:19 > 0:12:24Court of Appeal but the English did not have that right. I think it has
0:12:24 > 0:12:29delivered a lot of good across the spectrum. What I think we should do
0:12:29 > 0:12:39is wait for the findings of the review. It has produced its
0:12:39 > 0:12:41
0:12:41 > 0:12:45findings. It has not. This is the Review Commission in Scotland. They
0:12:45 > 0:12:53are very substantial figures. They behold to nobody apart from their
0:12:53 > 0:12:59own integrity and I look forward to their findings. As I have said, the
0:12:59 > 0:13:04procedural things should be debated. But the debate is being obscured.
0:13:04 > 0:13:09Do you object to the Supreme Court dealing with human rights, even
0:13:09 > 0:13:13when they affect human rights in Scotland? Is there a problem about
0:13:13 > 0:13:20Lord Hope and Lord Rogers dealing with these issues while remaining
0:13:20 > 0:13:24part of the United Kingdom? The language of extremity, which I am
0:13:24 > 0:13:31very glad to see you are distancing yourself from his very
0:13:31 > 0:13:36inappropriate. The components on this Review Commission are senior
0:13:36 > 0:13:43members of the legal profession. They include a constitutional
0:13:43 > 0:13:45lawyer. We have gone through that. I am just curious, we have
0:13:46 > 0:13:53suggested one way of solving the anomaly, which is not being
0:13:53 > 0:13:57accepted. What I used saying? Are you saying the Supreme Court of the
0:13:57 > 0:14:02United Kingdom should not have any role in human rights? That is what
0:14:03 > 0:14:06Alex Salmond appears to be saying. I have given an illustration of the
0:14:06 > 0:14:11anomaly that you introduced between the English, Welsh and Scottish
0:14:11 > 0:14:16courts. There has to be a bigger examination of everything that has
0:14:16 > 0:14:20been thrown up in constitutional terms. Not by politicians but by a
0:14:20 > 0:14:28respected figures in the Scottish legal profession. I think we should
0:14:28 > 0:14:33stick by their findings. What about the Convention of Human Rights?
0:14:34 > 0:14:38said I am waiting for the review. It would be foolish for me to pre-
0:14:38 > 0:14:44empt the findings of the senior legal figures which will come out
0:14:44 > 0:14:53in two weeks. Was Alex Salmond foolish to pre-empt it? I do not
0:14:53 > 0:15:01think he was. I think he set it up. I am trying to understand what the
0:15:01 > 0:15:07fuss is about! I thought I was in the witness box! Listening to that
0:15:07 > 0:15:11exchange was a political commentator, Iain McWhirter. We can
0:15:11 > 0:15:16talk about all the political things in a minute but do you think there
0:15:16 > 0:15:21is a serious issue? There is clearly a serious issue. What
0:15:21 > 0:15:26happened is what nobody expected. The UK Supreme Court is becoming a
0:15:26 > 0:15:30higher court of appeal than at the High Court in Scotland. Murder
0:15:30 > 0:15:36convictions were the appeals had been rejected in Scotland can be
0:15:36 > 0:15:41quashed in this case. It is inevitable there is going to be a
0:15:41 > 0:15:49disagreement. Because it does mean as has been suggested by the lord
0:15:49 > 0:15:56advocate, it is and a lot -- it is a problem in Scottish law.
0:15:56 > 0:16:01Politicians are defending their legal system. There is a reason for
0:16:01 > 0:16:07political heat. But we have to have a mechanism. Is a thing about
0:16:07 > 0:16:14higher courts, the European Court in Strasbourg, the Supreme Court is
0:16:14 > 0:16:23an intermediary stabbed. I can see there is an issue. -- an
0:16:23 > 0:16:27intermediary. We are signatories to the European Convention on Human
0:16:27 > 0:16:31Rights. But Strasbourg does not have the will, what authority to
0:16:31 > 0:16:40overturn appeals from the High Court. That is what the UK Supreme
0:16:40 > 0:16:50Court is now doing. That is what Lord Hope feels is right. We now
0:16:50 > 0:16:53have Peter James as well. He looks very unimpressed. It is not correct
0:16:53 > 0:17:03that the European Court of Justice does not have the power to overturn
0:17:03 > 0:17:05
0:17:05 > 0:17:11decisions. Can you give me any cases when it has? There was a case
0:17:11 > 0:17:17involving three men convicted of a catalogue of murders. Spare us the
0:17:17 > 0:17:25details. We take your point. case was overturned. There was huge
0:17:25 > 0:17:32uproar. If you stand back from this, there is an argument on either side,
0:17:32 > 0:17:35I think it is fair to say, is this really the sort of thing, they
0:17:35 > 0:17:41should have turned it into a political row? The issues are very
0:17:41 > 0:17:49complicated. We have got the issue of 900 criminal convictions that
0:17:49 > 0:17:55have been quashed or abandoned because of the prosecution's --
0:17:55 > 0:18:00because of the situation. But you are looking at this from the point
0:18:00 > 0:18:06of view of judges and lawyers and if Scotland is getting the right
0:18:06 > 0:18:12deal. What we are talking about is people having the right of a lawyer
0:18:12 > 0:18:19before being interrogated by the police. They have been found
0:18:19 > 0:18:23wanting, Scottish law, in this case. What happens under the Strasbourg
0:18:23 > 0:18:29jurisdiction is that the UK would be obliged to alter the law in
0:18:29 > 0:18:39conformity with the Convention on Human Rights. We are running out of
0:18:39 > 0:18:40
0:18:40 > 0:18:44time. Peter? The real issue here is that Scottish law is being dragged
0:18:44 > 0:18:50into the 21st century by its human rights. It has gone through the UK
0:18:50 > 0:18:55Supreme Court. If it was left to Strasbourg, which has got a backlog
0:18:55 > 0:19:02of hundreds of thousands of cases, you would wait three years before
0:19:02 > 0:19:07you had your few good rides adjudicated on. This is faster.
0:19:07 > 0:19:17Before you had your case adjudicate -- before you had your case
0:19:17 > 0:19:17
0:19:17 > 0:19:25adjudicated arm. This is something which should have been done and now
0:19:25 > 0:19:32the supreme court is exposing that failure. There is a case of the
0:19:32 > 0:19:36prosecution withholding vital evidence. That is unacceptable.
0:19:36 > 0:19:41What you both end up saying is actually justice is only being done
0:19:41 > 0:19:46because of the Supreme Court in London. It would not have happened
0:19:46 > 0:19:51if it was left to the Scottish system. We have got a
0:19:51 > 0:19:56constitutional question as well. We are looking at the way appeals are
0:19:56 > 0:20:02handled and referred to the Supreme Court in England. It is ridiculous
0:20:02 > 0:20:10to think that judges are not political. This is a body that is
0:20:10 > 0:20:18testing its own authority. We are out of time. Thank you very much
0:20:18 > 0:20:25indeed. We have got a brief time to look at the front pages. A picture