Scots judges rule, the Supreme Court overrules

POLITICIANS hate it when judges start “making the law”. Scots are proud of their separate legal system, which has survived centuries of union with England. So it was perhaps inevitable that when Britain's recently created Supreme Court began exercising its right to review some criminal cases from north of the border, Alex Salmond, Scotland's nationalist first minister, would protest.

By long tradition, appeals in Scottish criminal cases were heard by courts in Scotland, with no resort to higher British ones. But devolution, in 1998, transferred responsibility for legal matters to the Scottish Parliament, and defined the Lord Advocate—who heads Scotland's criminal prosecution service and is appointed by the queen on the advice of the first minister—as a government minister. And devolution law says that actions by ministers, and those who work under them, must conform to human-rights law.

The Privy Council's judicial committee, based in London, subsequently heard several Scottish appeals on human-rights grounds without much fuss. But since its powers in this area were transferred to the Supreme Court on its creation in 2009, Scottish defence lawyers have appealed to the new court over several more controversial cases, in which they argued that police or prosecutors breached their clients' rights.

Of six such cases the Supreme Court has heard, it has upheld two. In one, it outlawed a Scottish police practice of interviewing suspects for up to six hours without legal representation (which cops cannot do elsewhere in Britain), forcing the abandonment of hundreds of pending prosecutions. Now, in a second, it has overruled the Scottish appeal court and decided that prosecutors in a murder case, by withholding pivotal evidence, breached the accused's right to a fair trial.

Mr Salmond is affronted, saying it was “totally unsatisfactory” that a court of mainly English judges should second-guess Scottish courts. (Supreme Court cases are heard by five judges, two of them Scottish if the case is from north of the border.) Mr Salmond's justice secretary, Kenny MacAskill, is threatening to withdraw the £477,000 a year the Scottish government contributes to the running costs of the Supreme Court, dubbing it an “ambulance-chasing court”.

On May 31st Mr Salmond's cabinet decided to set up an expert group to suggest ways of ending the Supreme Court's Scottish criminal jurisdiction. This ignores recommendations made in March by a similar group set up by the Advocate General, Lord Wallace, who handles Scottish legal matters for the British government. It said the Supreme Court should carry on hearing Scottish criminal appeals because this would be a faster way to bring Scots law into line with international practice than taking cases to the European court in Strasbourg, Mr Salmond's preferred alternative.

Mr Salmond, however, may be less concerned with Scots law being anglicised—which it somehow managed to avoid during three centuries of rule from Westminster—than with opening up a row over supposed English oversight of a Scottish institution. This chimes nicely with his drive to persuade Scots to vote to break away from the rest of Britain in a referendum he will call in 2014-15. It also fits neatly with his strategy for achieving that by binding interest groups such as lawyers to his cause.