Browse content similar to 16/06/2011. Check below for episodes and series from the same categories and more!
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Tonight, it is the independence of the Scottish legal system under | 0:00:09 | 0:00:13 | |
attack? The legal establishment, Scottish government, Holyrood | 0:00:13 | 0:00:17 | |
opposition and the Scotland of this are fighting over who is the | 0:00:17 | 0:00:21 | |
guardian of Scots criminal law and who gets the last say. We talked to | 0:00:21 | 0:00:26 | |
the person who set up the Supreme Court. When lawyers attack a | 0:00:26 | 0:00:31 | |
politician it is unlikely anyone will care too much. Neither | 0:00:31 | 0:00:34 | |
profession wins a popularity contest. But the argument between | 0:00:34 | 0:00:41 | |
the First Minister and the deputy has led some to question whether | 0:00:41 | 0:00:47 | |
the foundations of democracy are under threat. The Scottish Law | 0:00:47 | 0:00:51 | |
Society has urged Alex Salmond not to interfere with the working of | 0:00:51 | 0:00:56 | |
the courts. Should we care? What is it all about? This is our political | 0:00:56 | 0:01:01 | |
correspondent. Alex Salmond may have set out to | 0:01:01 | 0:01:05 | |
defend the independence of Scottish law, but he has ended up having to | 0:01:05 | 0:01:10 | |
defend himself. The First Minister woke to find solicitors and | 0:01:10 | 0:01:19 | |
advocates had joined forces against him. It is fair to say that the | 0:01:19 | 0:01:25 | |
profession was upset and alarmed by the type of comments being made | 0:01:25 | 0:01:30 | |
about the senior member of the judiciary. They are referring to | 0:01:30 | 0:01:39 | |
interfere in Holyrood magazine. interfere in Holyrood magazine. | 0:01:39 | 0:01:44 | |
Alex Salmond tells them Lord Hope's judgments are extreme. Alex Salmond | 0:01:44 | 0:01:47 | |
judgments are extreme. Alex Salmond was particularly angry at this. | 0:01:47 | 0:01:52 | |
issue as to whether the current procedure violates the right to a | 0:01:52 | 0:01:55 | |
fair trial is one of law and should be dealt with by the courts and | 0:01:55 | 0:02:02 | |
Scottish ministers. Lord Hope led the UK Supreme Court ban all but | 0:02:02 | 0:02:06 | |
ruled against Scottish police being able to question suspects without | 0:02:06 | 0:02:13 | |
advice. One case led to hundreds of prosecutions being abandoned. And | 0:02:13 | 0:02:17 | |
the Supreme Court overturned a decision by Scottish courts in the | 0:02:17 | 0:02:26 | |
case of a businessman convicted of murder. Holyrood is enshrined in | 0:02:26 | 0:02:30 | |
law that independence of the judiciary including the Supreme | 0:02:30 | 0:02:35 | |
Court. At questions, Alex Salmond was accused of letting his | 0:02:35 | 0:02:41 | |
arrogance but that at stake. criminal law of Scotland is a | 0:02:41 | 0:02:45 | |
matter of public concern. It was not meant to be second-guessed in | 0:02:45 | 0:02:50 | |
the way it is at the moment. This is a public issue, compensation | 0:02:50 | 0:02:56 | |
payments paid to criminals in Scotland, and a liability not | 0:02:56 | 0:03:01 | |
existing in other jurisdictions. These are points of public concern. | 0:03:01 | 0:03:06 | |
As well as a right of free speech, we have a duty to articulate the | 0:03:07 | 0:03:16 | |
public concerns and try to bring a proper remedy. The First Minister | 0:03:16 | 0:03:19 | |
attacked at a lawyer for representing people because they | 0:03:19 | 0:03:25 | |
are vile. His Justice Secretary threatened to cut off funding from | 0:03:25 | 0:03:30 | |
a court because he did not like their judgments. I do not like some | 0:03:30 | 0:03:37 | |
of their judgments, also. But while people have been right so is the | 0:03:37 | 0:03:45 | |
price we pay for -- us all having those rights. While people being | 0:03:45 | 0:03:50 | |
defended in court is the price we pay for our rights to be defended. | 0:03:50 | 0:03:54 | |
We made the laws. But the independence of the judiciary is | 0:03:54 | 0:03:58 | |
the price we pay for the freedom to do that. Does the First Minister | 0:03:58 | 0:04:07 | |
agree and Willie retract his statements? There was no apology to | 0:04:07 | 0:04:15 | |
Labour. -- will he. The First Minister's hours -- outburst has | 0:04:15 | 0:04:19 | |
obscured the real issue. It has made a laughing stock of Alex | 0:04:19 | 0:04:23 | |
Salmond and diminished the Office of First Minister in this | 0:04:23 | 0:04:28 | |
Parliament. Will he apologise for bringing the Office of First | 0:04:28 | 0:04:36 | |
Minister into disrepute? No. apology again. This time, the | 0:04:36 | 0:04:44 | |
Liberal Democrats had a go. I want to give him a final chance. Will he | 0:04:44 | 0:04:48 | |
have withdrawn these outrageous remarks against our senior judges | 0:04:48 | 0:04:57 | |
and lawyers? The answer is the same I gave a few minutes ago. This | 0:04:58 | 0:05:01 | |
afternoon, the Sheriff of this court questioned whether he needed | 0:05:01 | 0:05:06 | |
to ask Alex Salmond for his view before deciding a case. It may have | 0:05:06 | 0:05:15 | |
been a joke, but it shows the potential for this to question the | 0:05:15 | 0:05:20 | |
political judgment of the First Minister. We are joined by a Lord | 0:05:20 | 0:05:26 | |
Charles Falconer and in Edinburgh, for the SNP, the chairman of the | 0:05:26 | 0:05:32 | |
Justice Committee. Lord Charles Falconer, are these cases are | 0:05:32 | 0:05:37 | |
undermining the independence of the Scottish judicial system? No. I | 0:05:37 | 0:05:42 | |
thought the Scottish legal system accepted the European Convention on | 0:05:42 | 0:05:46 | |
Human Rights. That is the basis on which the Scottish Parliament was | 0:05:46 | 0:05:52 | |
set up and MPs warmly embraced. I cannot understand why the First | 0:05:52 | 0:05:57 | |
Minister is attacking distinguished judges up for giving effect to the | 0:05:57 | 0:06:03 | |
convention. The difference between England and Scotland is that in | 0:06:03 | 0:06:07 | |
England, if you want to go on a human rights basis to the Supreme | 0:06:07 | 0:06:10 | |
Court you have to have the permission of the Court of Appeal. | 0:06:10 | 0:06:15 | |
In Scotland, you do not have to. There is an issue here. It has | 0:06:15 | 0:06:20 | |
always been the case that Scottish Criminal Appeals should stop in | 0:06:20 | 0:06:27 | |
Scotland. But everybody accepts that in exceptional cases European | 0:06:27 | 0:06:30 | |
Convention are right some will be determined by the Supreme Court, | 0:06:30 | 0:06:36 | |
whether from Scotland, England, in civil or criminal matters. Nobody | 0:06:36 | 0:06:42 | |
has disputed this until Alex Salmond began to attack individual | 0:06:42 | 0:06:48 | |
judges for applying the law in the context of two criminal cases. I do | 0:06:48 | 0:06:52 | |
not understand why he says it is unexpected and I do not understand | 0:06:52 | 0:06:57 | |
why he says it undermines the principles of Scottish criminal law. | 0:06:57 | 0:07:05 | |
One is he attacking judges? Can I address the question that Lord Hope | 0:07:05 | 0:07:14 | |
in October last year did not envisage that it would in any way | 0:07:14 | 0:07:17 | |
undermine the criminal justice system in Scotland. I am not saying | 0:07:17 | 0:07:25 | |
the UK Supreme Court is acting otherwise but it was not seen by | 0:07:25 | 0:07:30 | |
him. Lord Faulkner did not answer your question about discrepancies | 0:07:30 | 0:07:35 | |
that exist in England and Wales. If leave to appeal to the UK Supreme | 0:07:35 | 0:07:40 | |
Court is made in their courts and refused, unless it can be shown it | 0:07:40 | 0:07:45 | |
is certified of some huge public interest, they cannot appeal to the | 0:07:45 | 0:07:50 | |
UK Supreme Court. That is not the case in Scotland. That is a base to | 0:07:50 | 0:07:57 | |
start at. It is not a level playing field. That is not the basis on | 0:07:57 | 0:08:02 | |
which Alex Salmond attacked Lord Hope. He described his judgments as | 0:08:02 | 0:08:09 | |
extreme. Can I just say that if we are looking at recent issues with | 0:08:09 | 0:08:14 | |
in the parliament, that is historic. From an article written before the | 0:08:15 | 0:08:22 | |
setting up of eight -- an important of review group. An issue shared | 0:08:22 | 0:08:27 | |
across the spectrum of the legal profession. That is chaired by | 0:08:27 | 0:08:37 | |
honourable people. We have a... We have that substantial people. If I | 0:08:37 | 0:08:42 | |
may finish... That review will come forward with its findings before | 0:08:42 | 0:08:47 | |
the Scottish Parliament goes into recess. That is the issue at stake. | 0:08:48 | 0:08:53 | |
The suggestion appears to be that Lord Hope is doing something... You | 0:08:53 | 0:08:59 | |
can argue about the nature of the law. Alex Salmond seems to suggest | 0:08:59 | 0:09:03 | |
in his statements that the consequences of his judgments are | 0:09:03 | 0:09:10 | |
extreme. To be referring -- inferring that a judge is acting | 0:09:10 | 0:09:17 | |
beyond his powers. Lord Hope is not behaving improperly, is he? I speak | 0:09:17 | 0:09:23 | |
for myself, not as chair of the Justice Committee. I say that the | 0:09:23 | 0:09:30 | |
UK Supreme Court is acting in a certain way. Nobody, including Lord | 0:09:30 | 0:09:37 | |
Hope last year, did not concede to the consequences to the Scottish | 0:09:37 | 0:09:42 | |
justice system, which has been independent for centuries. Can I | 0:09:42 | 0:09:46 | |
pick up the point you are making. What do you mean by suggesting Lord | 0:09:46 | 0:09:52 | |
Hope is in some way infringing the independence... I never said that. | 0:09:53 | 0:10:02 | |
0:10:03 | 0:10:03 | ||
I thought you were worried about the independence of the system. | 0:10:03 | 0:10:10 | |
said at that stage he did not concede the UK Supreme Court | 0:10:10 | 0:10:17 | |
impinging on Scottish criminal law. That was his position then. Even he, | 0:10:17 | 0:10:27 | |
0:10:27 | 0:10:30 | ||
until faced with that all cases did Is there not an obvious solution to | 0:10:31 | 0:10:38 | |
this? What will not be done in the amendment is remove the anomaly. Do | 0:10:38 | 0:10:43 | |
you not just say that the code of Appeal in Scotland should allow for | 0:10:43 | 0:10:48 | |
people to apply on human rights grounds to the Supreme Court in | 0:10:48 | 0:10:53 | |
London and would that solve the problem? I have not got any problem | 0:10:53 | 0:10:57 | |
with the proposal Jim Wallace is suggesting. But he is not | 0:10:57 | 0:11:03 | |
suggesting that. Let me declare. I have not got a problem with the | 0:11:03 | 0:11:08 | |
procedural debate. What is misleading about the debate which | 0:11:09 | 0:11:15 | |
has been perpetrated by Alex Salmond is that he is trying to say | 0:11:15 | 0:11:19 | |
that there is something wrong with the substantial decisions that have | 0:11:19 | 0:11:23 | |
been reached and he is saying there is something wrong with the Supreme | 0:11:23 | 0:11:27 | |
Court in the United Kingdom dealing with human rights issues. There is | 0:11:27 | 0:11:32 | |
nothing wrong with them doing that. Even when they deal with Scottish | 0:11:32 | 0:11:42 | |
criminal law. There is nothing wrong with a Scottish judge... | 0:11:42 | 0:11:46 | |
point that it Scotland is going to complied with the European Court of | 0:11:46 | 0:11:50 | |
Human Rights, I understand he want independence but it has not got | 0:11:50 | 0:11:55 | |
that at the moment, but there has to be a mechanism whereby a human | 0:11:55 | 0:12:02 | |
rights cases can be transferred and having a role for the Supreme Court | 0:12:02 | 0:12:07 | |
is a pretty good way of doing that. It arguably discriminates people in | 0:12:07 | 0:12:13 | |
England. People in Scotland can go behind the back as it were of the | 0:12:13 | 0:12:19 | |
Court of Appeal but the English did not have that right. I think it has | 0:12:19 | 0:12:24 | |
delivered a lot of good across the spectrum. What I think we should do | 0:12:24 | 0:12:29 | |
is wait for the findings of the review. It has produced its | 0:12:29 | 0:12:39 | |
0:12:39 | 0:12:41 | ||
findings. It has not. This is the Review Commission in Scotland. They | 0:12:41 | 0:12:45 | |
are very substantial figures. They behold to nobody apart from their | 0:12:45 | 0:12:53 | |
own integrity and I look forward to their findings. As I have said, the | 0:12:53 | 0:12:59 | |
procedural things should be debated. But the debate is being obscured. | 0:12:59 | 0:13:04 | |
Do you object to the Supreme Court dealing with human rights, even | 0:13:04 | 0:13:09 | |
when they affect human rights in Scotland? Is there a problem about | 0:13:09 | 0:13:13 | |
Lord Hope and Lord Rogers dealing with these issues while remaining | 0:13:13 | 0:13:20 | |
part of the United Kingdom? The language of extremity, which I am | 0:13:20 | 0:13:24 | |
very glad to see you are distancing yourself from his very | 0:13:24 | 0:13:31 | |
inappropriate. The components on this Review Commission are senior | 0:13:31 | 0:13:36 | |
members of the legal profession. They include a constitutional | 0:13:36 | 0:13:43 | |
lawyer. We have gone through that. I am just curious, we have | 0:13:43 | 0:13:45 | |
suggested one way of solving the anomaly, which is not being | 0:13:46 | 0:13:53 | |
accepted. What I used saying? Are you saying the Supreme Court of the | 0:13:53 | 0:13:57 | |
United Kingdom should not have any role in human rights? That is what | 0:13:57 | 0:14:02 | |
Alex Salmond appears to be saying. I have given an illustration of the | 0:14:03 | 0:14:06 | |
anomaly that you introduced between the English, Welsh and Scottish | 0:14:06 | 0:14:11 | |
courts. There has to be a bigger examination of everything that has | 0:14:11 | 0:14:16 | |
been thrown up in constitutional terms. Not by politicians but by a | 0:14:16 | 0:14:20 | |
respected figures in the Scottish legal profession. I think we should | 0:14:20 | 0:14:28 | |
stick by their findings. What about the Convention of Human Rights? | 0:14:28 | 0:14:33 | |
said I am waiting for the review. It would be foolish for me to pre- | 0:14:34 | 0:14:38 | |
empt the findings of the senior legal figures which will come out | 0:14:38 | 0:14:44 | |
in two weeks. Was Alex Salmond foolish to pre-empt it? I do not | 0:14:44 | 0:14:53 | |
think he was. I think he set it up. I am trying to understand what the | 0:14:53 | 0:15:01 | |
fuss is about! I thought I was in the witness box! Listening to that | 0:15:01 | 0:15:07 | |
exchange was a political commentator, Iain McWhirter. We can | 0:15:07 | 0:15:11 | |
talk about all the political things in a minute but do you think there | 0:15:11 | 0:15:16 | |
is a serious issue? There is clearly a serious issue. What | 0:15:16 | 0:15:21 | |
happened is what nobody expected. The UK Supreme Court is becoming a | 0:15:21 | 0:15:26 | |
higher court of appeal than at the High Court in Scotland. Murder | 0:15:26 | 0:15:30 | |
convictions were the appeals had been rejected in Scotland can be | 0:15:30 | 0:15:36 | |
quashed in this case. It is inevitable there is going to be a | 0:15:36 | 0:15:41 | |
disagreement. Because it does mean as has been suggested by the lord | 0:15:41 | 0:15:49 | |
advocate, it is and a lot -- it is a problem in Scottish law. | 0:15:49 | 0:15:56 | |
Politicians are defending their legal system. There is a reason for | 0:15:56 | 0:16:01 | |
political heat. But we have to have a mechanism. Is a thing about | 0:16:01 | 0:16:07 | |
higher courts, the European Court in Strasbourg, the Supreme Court is | 0:16:07 | 0:16:14 | |
an intermediary stabbed. I can see there is an issue. -- an | 0:16:14 | 0:16:23 | |
intermediary. We are signatories to the European Convention on Human | 0:16:23 | 0:16:27 | |
Rights. But Strasbourg does not have the will, what authority to | 0:16:27 | 0:16:31 | |
overturn appeals from the High Court. That is what the UK Supreme | 0:16:31 | 0:16:40 | |
Court is now doing. That is what Lord Hope feels is right. We now | 0:16:40 | 0:16:50 | |
have Peter James as well. He looks very unimpressed. It is not correct | 0:16:50 | 0:16:53 | |
that the European Court of Justice does not have the power to overturn | 0:16:53 | 0:17:03 | |
0:17:03 | 0:17:05 | ||
decisions. Can you give me any cases when it has? There was a case | 0:17:05 | 0:17:11 | |
involving three men convicted of a catalogue of murders. Spare us the | 0:17:11 | 0:17:17 | |
details. We take your point. case was overturned. There was huge | 0:17:17 | 0:17:25 | |
uproar. If you stand back from this, there is an argument on either side, | 0:17:25 | 0:17:32 | |
I think it is fair to say, is this really the sort of thing, they | 0:17:32 | 0:17:35 | |
should have turned it into a political row? The issues are very | 0:17:35 | 0:17:41 | |
complicated. We have got the issue of 900 criminal convictions that | 0:17:41 | 0:17:49 | |
have been quashed or abandoned because of the prosecution's -- | 0:17:49 | 0:17:55 | |
because of the situation. But you are looking at this from the point | 0:17:55 | 0:18:00 | |
of view of judges and lawyers and if Scotland is getting the right | 0:18:00 | 0:18:06 | |
deal. What we are talking about is people having the right of a lawyer | 0:18:06 | 0:18:12 | |
before being interrogated by the police. They have been found | 0:18:12 | 0:18:19 | |
wanting, Scottish law, in this case. What happens under the Strasbourg | 0:18:19 | 0:18:23 | |
jurisdiction is that the UK would be obliged to alter the law in | 0:18:23 | 0:18:29 | |
conformity with the Convention on Human Rights. We are running out of | 0:18:29 | 0:18:39 | |
0:18:39 | 0:18:40 | ||
time. Peter? The real issue here is that Scottish law is being dragged | 0:18:40 | 0:18:44 | |
into the 21st century by its human rights. It has gone through the UK | 0:18:44 | 0:18:50 | |
Supreme Court. If it was left to Strasbourg, which has got a backlog | 0:18:50 | 0:18:55 | |
of hundreds of thousands of cases, you would wait three years before | 0:18:55 | 0:19:02 | |
you had your few good rides adjudicated on. This is faster. | 0:19:02 | 0:19:07 | |
Before you had your case adjudicate -- before you had your case | 0:19:07 | 0:19:17 | |
0:19:17 | 0:19:17 | ||
adjudicated arm. This is something which should have been done and now | 0:19:17 | 0:19:25 | |
the supreme court is exposing that failure. There is a case of the | 0:19:25 | 0:19:32 | |
prosecution withholding vital evidence. That is unacceptable. | 0:19:32 | 0:19:36 | |
What you both end up saying is actually justice is only being done | 0:19:36 | 0:19:41 | |
because of the Supreme Court in London. It would not have happened | 0:19:41 | 0:19:46 | |
if it was left to the Scottish system. We have got a | 0:19:46 | 0:19:51 | |
constitutional question as well. We are looking at the way appeals are | 0:19:51 | 0:19:56 | |
handled and referred to the Supreme Court in England. It is ridiculous | 0:19:56 | 0:20:02 | |
to think that judges are not political. This is a body that is | 0:20:02 | 0:20:10 | |
testing its own authority. We are out of time. Thank you very much | 0:20:10 | 0:20:18 | |
indeed. We have got a brief time to look at the front pages. A picture | 0:20:18 | 0:20:25 |