16/06/2011 Newsnight Scotland


16/06/2011

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Tonight, it is the independence of the Scottish legal system under

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attack? The legal establishment, Scottish government, Holyrood

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opposition and the Scotland of this are fighting over who is the

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guardian of Scots criminal law and who gets the last say. We talked to

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the person who set up the Supreme Court. When lawyers attack a

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politician it is unlikely anyone will care too much. Neither

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profession wins a popularity contest. But the argument between

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the First Minister and the deputy has led some to question whether

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the foundations of democracy are under threat. The Scottish Law

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Society has urged Alex Salmond not to interfere with the working of

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the courts. Should we care? What is it all about? This is our political

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correspondent. Alex Salmond may have set out to

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defend the independence of Scottish law, but he has ended up having to

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defend himself. The First Minister woke to find solicitors and

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advocates had joined forces against him. It is fair to say that the

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profession was upset and alarmed by the type of comments being made

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about the senior member of the judiciary. They are referring to

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interfere in Holyrood magazine. interfere in Holyrood magazine.

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Alex Salmond tells them Lord Hope's judgments are extreme. Alex Salmond

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judgments are extreme. Alex Salmond was particularly angry at this.

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issue as to whether the current procedure violates the right to a

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fair trial is one of law and should be dealt with by the courts and

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Scottish ministers. Lord Hope led the UK Supreme Court ban all but

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ruled against Scottish police being able to question suspects without

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advice. One case led to hundreds of prosecutions being abandoned. And

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the Supreme Court overturned a decision by Scottish courts in the

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case of a businessman convicted of murder. Holyrood is enshrined in

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law that independence of the judiciary including the Supreme

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Court. At questions, Alex Salmond was accused of letting his

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arrogance but that at stake. criminal law of Scotland is a

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matter of public concern. It was not meant to be second-guessed in

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the way it is at the moment. This is a public issue, compensation

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payments paid to criminals in Scotland, and a liability not

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existing in other jurisdictions. These are points of public concern.

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As well as a right of free speech, we have a duty to articulate the

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public concerns and try to bring a proper remedy. The First Minister

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attacked at a lawyer for representing people because they

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are vile. His Justice Secretary threatened to cut off funding from

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a court because he did not like their judgments. I do not like some

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of their judgments, also. But while people have been right so is the

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price we pay for -- us all having those rights. While people being

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defended in court is the price we pay for our rights to be defended.

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We made the laws. But the independence of the judiciary is

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the price we pay for the freedom to do that. Does the First Minister

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agree and Willie retract his statements? There was no apology to

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Labour. -- will he. The First Minister's hours -- outburst has

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obscured the real issue. It has made a laughing stock of Alex

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Salmond and diminished the Office of First Minister in this

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Parliament. Will he apologise for bringing the Office of First

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Minister into disrepute? No. apology again. This time, the

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Liberal Democrats had a go. I want to give him a final chance. Will he

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have withdrawn these outrageous remarks against our senior judges

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and lawyers? The answer is the same I gave a few minutes ago. This

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afternoon, the Sheriff of this court questioned whether he needed

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to ask Alex Salmond for his view before deciding a case. It may have

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been a joke, but it shows the potential for this to question the

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political judgment of the First Minister. We are joined by a Lord

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Charles Falconer and in Edinburgh, for the SNP, the chairman of the

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Justice Committee. Lord Charles Falconer, are these cases are

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undermining the independence of the Scottish judicial system? No. I

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thought the Scottish legal system accepted the European Convention on

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Human Rights. That is the basis on which the Scottish Parliament was

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set up and MPs warmly embraced. I cannot understand why the First

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Minister is attacking distinguished judges up for giving effect to the

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convention. The difference between England and Scotland is that in

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England, if you want to go on a human rights basis to the Supreme

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Court you have to have the permission of the Court of Appeal.

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In Scotland, you do not have to. There is an issue here. It has

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always been the case that Scottish Criminal Appeals should stop in

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Scotland. But everybody accepts that in exceptional cases European

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Convention are right some will be determined by the Supreme Court,

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whether from Scotland, England, in civil or criminal matters. Nobody

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has disputed this until Alex Salmond began to attack individual

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judges for applying the law in the context of two criminal cases. I do

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not understand why he says it is unexpected and I do not understand

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why he says it undermines the principles of Scottish criminal law.

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One is he attacking judges? Can I address the question that Lord Hope

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in October last year did not envisage that it would in any way

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undermine the criminal justice system in Scotland. I am not saying

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the UK Supreme Court is acting otherwise but it was not seen by

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him. Lord Faulkner did not answer your question about discrepancies

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that exist in England and Wales. If leave to appeal to the UK Supreme

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Court is made in their courts and refused, unless it can be shown it

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is certified of some huge public interest, they cannot appeal to the

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UK Supreme Court. That is not the case in Scotland. That is a base to

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start at. It is not a level playing field. That is not the basis on

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which Alex Salmond attacked Lord Hope. He described his judgments as

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extreme. Can I just say that if we are looking at recent issues with

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in the parliament, that is historic. From an article written before the

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setting up of eight -- an important of review group. An issue shared

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across the spectrum of the legal profession. That is chaired by

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honourable people. We have a... We have that substantial people. If I

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may finish... That review will come forward with its findings before

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the Scottish Parliament goes into recess. That is the issue at stake.

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The suggestion appears to be that Lord Hope is doing something... You

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can argue about the nature of the law. Alex Salmond seems to suggest

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in his statements that the consequences of his judgments are

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extreme. To be referring -- inferring that a judge is acting

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beyond his powers. Lord Hope is not behaving improperly, is he? I speak

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for myself, not as chair of the Justice Committee. I say that the

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UK Supreme Court is acting in a certain way. Nobody, including Lord

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Hope last year, did not concede to the consequences to the Scottish

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justice system, which has been independent for centuries. Can I

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pick up the point you are making. What do you mean by suggesting Lord

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Hope is in some way infringing the independence... I never said that.

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I thought you were worried about the independence of the system.

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said at that stage he did not concede the UK Supreme Court

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impinging on Scottish criminal law. That was his position then. Even he,

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until faced with that all cases did Is there not an obvious solution to

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this? What will not be done in the amendment is remove the anomaly. Do

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you not just say that the code of Appeal in Scotland should allow for

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people to apply on human rights grounds to the Supreme Court in

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London and would that solve the problem? I have not got any problem

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with the proposal Jim Wallace is suggesting. But he is not

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suggesting that. Let me declare. I have not got a problem with the

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procedural debate. What is misleading about the debate which

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has been perpetrated by Alex Salmond is that he is trying to say

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that there is something wrong with the substantial decisions that have

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been reached and he is saying there is something wrong with the Supreme

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Court in the United Kingdom dealing with human rights issues. There is

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nothing wrong with them doing that. Even when they deal with Scottish

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criminal law. There is nothing wrong with a Scottish judge...

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point that it Scotland is going to complied with the European Court of

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Human Rights, I understand he want independence but it has not got

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that at the moment, but there has to be a mechanism whereby a human

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rights cases can be transferred and having a role for the Supreme Court

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is a pretty good way of doing that. It arguably discriminates people in

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England. People in Scotland can go behind the back as it were of the

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Court of Appeal but the English did not have that right. I think it has

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delivered a lot of good across the spectrum. What I think we should do

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is wait for the findings of the review. It has produced its

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findings. It has not. This is the Review Commission in Scotland. They

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are very substantial figures. They behold to nobody apart from their

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own integrity and I look forward to their findings. As I have said, the

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procedural things should be debated. But the debate is being obscured.

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Do you object to the Supreme Court dealing with human rights, even

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when they affect human rights in Scotland? Is there a problem about

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Lord Hope and Lord Rogers dealing with these issues while remaining

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part of the United Kingdom? The language of extremity, which I am

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very glad to see you are distancing yourself from his very

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inappropriate. The components on this Review Commission are senior

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members of the legal profession. They include a constitutional

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lawyer. We have gone through that. I am just curious, we have

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suggested one way of solving the anomaly, which is not being

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accepted. What I used saying? Are you saying the Supreme Court of the

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United Kingdom should not have any role in human rights? That is what

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Alex Salmond appears to be saying. I have given an illustration of the

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anomaly that you introduced between the English, Welsh and Scottish

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courts. There has to be a bigger examination of everything that has

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been thrown up in constitutional terms. Not by politicians but by a

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respected figures in the Scottish legal profession. I think we should

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stick by their findings. What about the Convention of Human Rights?

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said I am waiting for the review. It would be foolish for me to pre-

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empt the findings of the senior legal figures which will come out

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in two weeks. Was Alex Salmond foolish to pre-empt it? I do not

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think he was. I think he set it up. I am trying to understand what the

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fuss is about! I thought I was in the witness box! Listening to that

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exchange was a political commentator, Iain McWhirter. We can

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talk about all the political things in a minute but do you think there

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is a serious issue? There is clearly a serious issue. What

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happened is what nobody expected. The UK Supreme Court is becoming a

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higher court of appeal than at the High Court in Scotland. Murder

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convictions were the appeals had been rejected in Scotland can be

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quashed in this case. It is inevitable there is going to be a

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disagreement. Because it does mean as has been suggested by the lord

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advocate, it is and a lot -- it is a problem in Scottish law.

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Politicians are defending their legal system. There is a reason for

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political heat. But we have to have a mechanism. Is a thing about

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higher courts, the European Court in Strasbourg, the Supreme Court is

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an intermediary stabbed. I can see there is an issue. -- an

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intermediary. We are signatories to the European Convention on Human

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Rights. But Strasbourg does not have the will, what authority to

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overturn appeals from the High Court. That is what the UK Supreme

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Court is now doing. That is what Lord Hope feels is right. We now

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have Peter James as well. He looks very unimpressed. It is not correct

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that the European Court of Justice does not have the power to overturn

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decisions. Can you give me any cases when it has? There was a case

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involving three men convicted of a catalogue of murders. Spare us the

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details. We take your point. case was overturned. There was huge

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uproar. If you stand back from this, there is an argument on either side,

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I think it is fair to say, is this really the sort of thing, they

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should have turned it into a political row? The issues are very

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complicated. We have got the issue of 900 criminal convictions that

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have been quashed or abandoned because of the prosecution's --

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because of the situation. But you are looking at this from the point

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of view of judges and lawyers and if Scotland is getting the right

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deal. What we are talking about is people having the right of a lawyer

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before being interrogated by the police. They have been found

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wanting, Scottish law, in this case. What happens under the Strasbourg

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jurisdiction is that the UK would be obliged to alter the law in

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conformity with the Convention on Human Rights. We are running out of

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time. Peter? The real issue here is that Scottish law is being dragged

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into the 21st century by its human rights. It has gone through the UK

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Supreme Court. If it was left to Strasbourg, which has got a backlog

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of hundreds of thousands of cases, you would wait three years before

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you had your few good rides adjudicated on. This is faster.

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Before you had your case adjudicate -- before you had your case

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adjudicated arm. This is something which should have been done and now

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the supreme court is exposing that failure. There is a case of the

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prosecution withholding vital evidence. That is unacceptable.

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What you both end up saying is actually justice is only being done

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because of the Supreme Court in London. It would not have happened

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if it was left to the Scottish system. We have got a

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constitutional question as well. We are looking at the way appeals are

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handled and referred to the Supreme Court in England. It is ridiculous

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to think that judges are not political. This is a body that is

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testing its own authority. We are out of time. Thank you very much

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indeed. We have got a brief time to look at the front pages. A picture

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