The Scottish body politic has always loved a good constitutional row. Since the rise of the Scottish National Party (SNP) in the late 1960s there have been many, concerning sovereignty, electoral mandates and who had the right to govern Scotland. These were all important debates, and elements of each feed into an ongoing row currently filling column inches north (if not south) of the border. On one side is the SNP leader and First Minister Alex Salmond, who claims the independence of Scotland’s criminal legal system is under threat, and on the other a respected body of legal opinion that say he’s playing politics.

It all kicked off at the end of last month when the UK Supreme Court in London ruled that Scottish prosecutors had breached Nat Fraser’s right to a fair trial under the European Convention on Human Rights (ECHR). Fraser was jailed for life in 2003 after a jury at the High Court in Edinburgh found him guilty of killing his estranged wife, whose body has never been found. He now faces a retrial. The ruling prevents the case being referred direct to the European Court of Human Rights in Strasbourg (where there’s a lengthy backlog and no specifically Scottish legal expertise), which is the First Minister’s preferred destination for such appeals.
Constitutionally, the Supreme Court has done nothing wrong: the 1998 Scotland Act enshrined the ECHR, thus any appeal under that Convention was handled initially by the old Judicial Committee of the Privy Council, and since 2009 by the Supreme Court. I once temped at the “JC of the PC”, which used to sit in a panelled room at the end of Downing Street. If it still handled “devolution issues” alongside murder trials from Trinidad and Tobago (its judicial bread and butter), I might be able to comprehend the Scottish Government’s objection to what is essentially a colonial hangover.

But the Supreme Court is not exercising, as some have implied, “judicial imperialism”, merely acting as it and the JC have done so since 1999. Its creation may have passed most Scots by a few years ago, but that is no excuse. It finally extracted the Law Lords from the Upper House of Parliament and separated the legislature (and its executive) from the judiciary, the dream of constitutional reformers for decades. Even its crest (designed by a Scot), emblazoned with the Scottish thistle, English rose, Welsh leek and a blue flax flower representing Northern Ireland, emphasises its pan-UK reach.

Most lawyers and sensible commentators, therefore, accept that the SNP’s sudden interest in a court to which it had hitherto paid no attention has no legal or constitutional basis, but is rather entirely political in nature. This is not a criticism. Alex Salmond is a Nationalist and leads a Nationalist administration. Nationalists – as is their legitimate political right – aspire to an independent Scotland and seek to achieve that goal by any means possible. No self-respecting Nationalist would let an opportunity like this pass them by. 

But that isn’t to say this row lacks importance. It really ought to be seen as a dry run for the next three or four years, a limbering up exercise for the wider rhetorical battle between Unionists and Nationalists (not that those are any longer adequate descriptions) ahead of a referendum on Scottish independence planned for 2014 or 2015. In a sense the SNP are flying a kite, trying out various lines of attack to see what resonates and what doesn’t.

In that context the detail of this particular row is unimportant: most Scots are not legal or constitutional experts, nor do they care about the minutia of spats between the Scottish and UK Governments. What many will have gleaned, however, is a general impression that “English” judges sitting in “another country” (as the First Minister recently put it) are “interfering” with Scots Law, for centuries proudly distinct (although not radically so) from that in England. The SNP will have been seen to “stand up for Scotland” and, as the recent Holyrood election demonstrated, they’re rather good at this.

In terms of detail and tone, however, the Unionists have won this round, and that at least demonstrates that those who want to defend the United Kingdom (although not necessarily as currently constituted) have some fighting spirit left. The Scotland Office – formerly the Scottish Office – has for once been proactive in tackling Alex Salmond’s arguments head on. For too long this Whitehall outpost of the ancien regime has been too reticent, fearful that any intervention would simply “play into the SNP’s hands”. With a majority Nationalist Government in control of Holyrood, this is no time for feint hearts in Dover House. 

What’s needed is a much more muscular Unionism, and if that’s not going to emanate from the Scotland Office, then the constructive Unionist cause is doomed. In politics, tone is very important, and in this instance the quiet man of Scottish politics, Lord Wallace of Tankerness, the Advocate-General for Scotland (and formerly a Liberal Democrat Deputy First Minister of Scotland) has played a blinder. In a measured statement (augmented with television and radio interviews), he rebutted the arguments posited by Salmond et al in a positive, constructive and politically shrewd manner.

This was in sharp contrast to the First Minister and his Justice Secretary, Kenny MacAskill, who have behaved truculently and, on occasion, in a deeply personal fashion. Both have impugned the integrity of a widely respected Scot, Lord Hope, formerly Scotland’s most senior judge, MacAskill even implying his knowledge of Scots Law was “picked up” from a visit to the Edinburgh Festival. More seriously, there has been an undercurrent of Anglophobia in references to “English judges” (although two were not) from “another country” (by which the SNP presumably meant the UK, again erroneously). It must come as news to the Edinburgh-based Lord Hope that either is the case. 

For a self-confessed “Anglophile” such as Alex Salmond, this is rather puzzling. He has gone to extraordinary lengths as leader of his party to remove any whiff of anti-Englishness from the SNP, repeatedly stressing his desire for a “social union” between England and Scotland and a relationship based upon “mutual respect”. Perhaps it’s post-election hubris, for last week the First Minister informed Prospect that “you couldn’t get two more different cultures” than English and Scottish, while asserting that unlike in England, “inequalities in Scotland are not generally linked to the monarchy”.

It’s all a far cry from the born-again, relentlessly positive leader of the nation we’ve been treated to (with occasional lapses) since he was first elected First Minister in 2007. Alex Salmond appears to have returned to type: pugilistic, aggressive and with scant regard for the facts. Compare and contrast with his conduct during the sustained criticism that followed the release of the Lockerbie bomber al-Megrahi. Then he was on top form: lucid, measured in tone and, unlike at present, articulating arguments based predominantly on fact. 

The First Minister may not have picked a good fight over the last few days, but his broader aim is clear. The Scotland Office, not to forget any party, politician or public figure that wants to preserve a positive and flexible vision of the United Kingdom, has to be prepared for more of the same. The important thing is to resist the sort of petulant behaviour, tawdry language and shameless tactics that – if this spat is anything to go by – Scotland’s “National” Party intends to deploy during the long debate over the UK’s constitutional future.