When the SNP was returned to power with an unprecedented majority at the Scottish Parliament, it was clear relations north and south of the border would be strained at times.
It took only weeks into the new term for acrimony to surface – a schism that had been building within legal circles for some time has now erupted into a bitter constitutional and political fall-out.
The source of the conflict is the impact the Supreme Court in London has on Scots law.
First Minister Alex Salmond and Justice Secretary Kenny MacAskill have accused the court of “intervening aggressively” in Scotland’s independent legal system following two recent and high-profile rulings that the Scottish system has breached the European Convention on Human Rights (ECHR) in criminal cases.
But critics have accused the SNP of using the rulings to pick a politically-motivated fight with London, instead of facing up to insufficiencies within the domestic legal system.
The controversy centres on the Supreme Court’s power, given to it when it was set up in 2009, to rule solely on whether a Scottish criminal court had breached the ECHR or failed to uphold a defendant’s human rights. This power was previously held by the Privy Council under the Scotland Act 1999.
The court has no power to rule on crimes or laws passed by the Scottish Parliament – unless they breach the convention.
The feud intensified last month when judges in London ruled the conviction of Nat Fraser, who was found guilty in 2003 of murdering his wife, Arlene, was unsafe.
The Supreme Court backed his appeal under Article 6 of the ECHR on the ground of the Crown’s non-disclosure of evidence to the defence.
The Scottish Government has condemned the decision and said the Supreme Court’s authority threatens the independence of Scots law.
But problems between the Scottish Government and the court have been brewing for some time.
Last year the Scottish legal system was thrown into chaos when the court ruled that a suspect, Peter Cadder, had his human rights breached after he was questioned without access to a solicitor.
The Supreme Court ruled in October that the Scottish system, which allowed suspects to be held and questioned for six hours without access to a lawyer, breached the ECHR.
In light of the Cadder ruling, 867 cases were abandoned, including 60 serious cases, nine of which were High Court cases.
Following the Fraser ruling last month, MacAskill upped the stakes when he indicated Scotland could cancel Scottish funding for the UK Supreme Court. In his attack, MacAskill challenged the competence of the seven Supreme Court judges, suggesting that some had gleaned their knowledge of Scots law from visits to the Edinburgh festivals, despite the fact two are Scottish. He also described the court as “ambulance chasing”.
The SNP has been accused of using aggressive rhetoric to turn the issue into a political matter.
Advocate Niall McCluskey said: “There is no doubt the SNP is using the recent cases like Cadder and Fraser to address a nationalist cause.
“The role of the Supreme Court is not new and in effect is a rebranding of the Privy Council and that has been in operation since 1999. There has been 23 cases go there in that time and the SNP has not complained about any of those cases, it’s only since Cadder and of course, Fraser.
“It was known back in 1999 that the Privy Council would come into play in our system in a way it hadn’t before so there’s nothing new. This has been the case for 12 years now. It is kind of late in the day to be complaining about it.”
Scotland’s legal profession has not been slow to register its disagreement with the Scottish Government’s position.
Out of 597 legal professionals who responded to a survey by Scottish Legal News last week, 456 said the right of appeal to the Supreme Court did not threaten the independence of Scots law.
But the SNP has been unwavering in its attack on the Supreme Court’s role.
At the centre of the party’s argument is that it puts Scotland in a uniquely disadvantaged position of having an extra layer between domestic law and the European court in Strasbourg.
Salmond said it is “an issue of equality and respect” and that “Scots laws has never been subordinate to any other legal system”.
He added: “Currently the UK Supreme Court can hear appeals on human rights grounds in Scottish criminal cases even when the High Court of Judiciary in Scotland has not granted leave to appeal. By contrast, in England, an appeal to the Supreme Court is possible only with the leave of the Court of Appeal and only when a point of general public importance is at stake.
“The intended role of the Supreme Court in Scottish criminal cases is to consider ‘devolution issues’, mostly issues related to the ECHR. When the convention was incorporated into the Scottish Act 1998, the SNP welcomed the move, along with many others.”
But he said “unforeseen problems” have developed that need to be “remedied”. Salmond said Article 6 of the convention, which guarantees the right to a fair trial, is “construed widely” by the Supreme Court.
He said it effectively creates a further right of appeal to the Supreme Court in Scottish criminal cases, which, he added, “was never the anticipated role of the court and is a development which High Court judges in Scotland have expressed concern about”.
He added: “The current situation where criminal appeals decided in Scotland by a court of sometimes as many as seven Scottish judges can be overruled by a Supreme Court bench made up of five judges – or on occasion, seven – with a maximum of two from Scotland, must not be allowed to continue.”
Niall McCluskey, who is a member of the Scottish advisory group at campaign organisation Justice, said: “The Supreme Court was set up to secure in our domestic systems the immediate application of convention rights, rather than relying upon correction at Strasbourg.
“The constitutional structure enables courts to ensure minimum rights apply and the Supreme Court ensures a harmonised approach throughout the UK.
“If we separate from the Supreme Court, Scots would then only have the one right of appeal restricted to the Scottish Court, whereas the rest of the UK can appeal to an appeal court and then the Supreme Court. Does the SNP really wish Scottish citizens to be disadvantaged in this way?
“Further appeal to Strasbourg is of limited use as it does not provide adequate remedy for breach of convention rights. The Strasbourg court cannot, for example, quash a conviction where the trial has been unfair, and it takes years to process.”
Brian McConnachie QC, vice-chairman of the Faculty of Advocates Criminal Bar Association, said the SNP’s attack was “scaremongering nonsense”.
He added: “I think Alex Salmond is playing to a particular audience and what he is saying is without too much thought in relation to the actual legal position.
“The Supreme Court is there to ensure people in Scotland accused of a crime have the same human rights cover as the rest of the UK.”
Lord Boyd QC, a former Lord Advocate, said the Supreme Court had a necessary role.
He said: “Legal systems have to grow and develop and serve the people,” insisting they are not there as “totems for nationalists”.
He added: “We have to abide by the highest international standards, and if that means that notions of civil and human rights come from elsewhere, my view is that it enriches Scottish law, rather than diminishes it.”
Cameron Ritchie, who took over as Law Society president last month, said the Supreme Court is functioning well.
He added: “We have two of the finest (Scottish) legal minds (Lords Hope and Rodger) sitting as judges in that court. So far as I can see, the decisions they have made over the last few years are unchallengeable.”
For some, Supreme Court interventions have been welcomed for addressing inadequacies the Scottish courts had in upholding human rights legislation.
After the Cadder ruling, the Scottish Government was heavily criticised for not changing the law when it had the opportunity years previous. In 2008 the European Court of Human Rights ruled Turkey had infringed the rights of an 18-year-old called Yusuf Salduz, who was denied access to a lawyer when he was detained.
The European court then ruled in favour of similar complainers in cases in Russia, Ukraine, Poland and Cyprus – despite this, Scottish authorities continued to resist change. This was in part due to a decision in 2009 when a bench of seven Scottish judges in Edinburgh considered the Salduz judgment and decided that it did not apply because of other safeguards in domestic law, like corroboration and the right to silence.
The ruling that came last year from the Cadder case, which stated suspects should have access to a lawyer, was not a new issue in Scotland. For several years there had been calls for the Scottish position to change – the same issue surfaced twice in argument before the Appeal Court, in Paton v Ritchie in 1999 and in Dickson v HMA in 2001. On both occasions the practice of denying access to a solicitor was considered and held to be compatible with the ECHR.
Solicitor Advocate John Scott said: “Unfortunately for the Supreme Court, it had to consider the Cadder case on detention without access to a solicitor.
“Their decision in October 2010 saw Scotland brought into line with the rest of Europe. A bench of seven Scottish judges had considered the Salduz v Turkey judgment and decided that it didn’t apply (to Scotland) because of other safeguards.
“The Supreme Court pointed out the inevitable; that we were not immune from such international developments regardless of how fair we might be in other ways.
“There have been ripples, but these might have been mitigated if the Crown or High Court in Edinburgh had grasped the nettle.”
Niall McCluskey added: “If you look at the Cadder case, the big upheaval could be said to be a result of the failure of the Scottish Parliament to legislate when the Salduz decision came in. They should have done something and that would have saved this whole hassle, it was not an issue with the Supreme Court, but with the Scottish Government.”
The Government announced last week that Lord McCluskey, a former solicitor general, will lead a review of the Supreme Court’s controversial role in Scottish justice. The experts appointed also include Sir Gerald Gordon, a former professor of Scots Law at Edinburgh University; Charles Stoddart, who has acted as interim Sheriff Principal; and Professor Neil Walker, an expert in constitutional law.
They have been asked to produce their report within weeks. Scottish ministers say that they want Holyrood to debate the issue before it breaks for its summer recess.
Salmond has called for the forthcoming Scotland Bill to be changed to stop the UK Supreme Court having the final word in Scottish criminal cases. He insists it is crucial for maintaining the renowned reputation of Scots law.
But while the political and constitutional aspects of the debate will undoubtedly rumble on for some time to come, they may be overshadowing a more pressing discussion – what the cases of Cadder and Fraser say about the fairness and decency of the Scottish legal system.