More to Supreme Court row than mere posturing

Mr MacAskill has challenged the competence of the English judges on the UK Supreme Court, suggesting that all they know about Scots Law is what they pick up on trips to the Edinburgh Festival. Bitchy or what? He has moved one step further and threatened to cut Scottish funding for the Supreme Court, Thus far, Mr MacAskill has the backing of the First Minister Alex Salmond in his fight against the English invaders, just as the FM backed him over the release of Abdelbaset Ali Mohmed al-Megrahi. Perhaps hurt still lingers at the way Mr MacAskill’s competence was challenged by politicians and lawyers south of the Border who thought the man convicted of the Lockerbie bombing should have died in jail.

If this is what the next five years of SNP majority rule is going to be like, then it’ll be a great time for journalism, if not perhaps for jurisprudence. Is the rush to protect Scots Law politically motivated? Is Mr Salmond picking a fight with London? Well, to the extent that everything the SNP leader does is political, this is. It is an exercise in national consciousness-raising, with the independence referendum in mind. However, the row over the remit of the Supreme Court is not just political posturing. There is a real issue here that needs to be resolved, though of course, since lawyers make a good living out of not resolving issues, it probably won’t be.

The trouble with mixing emotion with the law is it plays into the hands of the judges. M’Learned Friends like nothing better than politicians, especially Scottish politicians, losing their cool, because it means they can dismiss their arguments. And that is currently what they are doing. There is no indication that the UK Government is planning to abolish or curb the Supreme Court. It’s only been in place for two years, and is the fruit of some 30 years of advocacy by legal reformers, who argued that it is fundamentally unjust to make citizens, who feel their human rights have been violated, go through the costly and time-consuming exercise of appealing to the European Court of Human Rights in Strasbourg. Justice delayed is justice denied. Strasbourg has a backlog of 120,000 cases, which will take it until 2050 to clear.

However, what no-one expected was that this would in turn undermine the centuries-old independent Scottish legal system. But then, no one expected the Spanish Inquisition either, as Monty Python observed, and a legal system has to be able to cope with unintended consequences. It was never assumed that appeals on criminal cases would be heard by the Supreme Court. That’s the job of the Scottish High Court which has its own jurisdiction.

The problem obviously arises when there is a criminal appeal which revolves round a human rights issue, such as the Nat Fraser and Cadder cases. Then, who is the top legal dog: the High Court or the Supreme Court? Since the UK remains a sovereign body, and indeed, was the signatory of the original Human Rights Convention, the judges on the Supreme Court naturally think that they would be the final arbiters of human rights cases in the UK. They have a couple of Scottish Law Lords sitting on their bench to help out with the particulars of Scots Law. But make no mistake, this is a UK body enforcing law on a UK-wide basis.

However, it cannot be right to thus subordinate the Scottish courts any more than English courts are subordinate to the European Court of Human Rights in Strasbourg. That’s not how it works at all. The Nat Fraser and Cadder rulings suggest that Scots Law is not the law of the land any more. The Scottish courts were quite happy about police officers interviewing suspects for six hours without a lawyer present, as had been the case in Cadder. They were also happy with the fact that the prosecution in the Nat Fraser trial had not disclosed evidence that assisted the defence case.

Now, I think that there were deficiencies here that needed to be addressed, whoever is in charge of the law. It is simply unfair for suspects to be questioned without a lawyer to guide them, and no other European country does it. It is surely right that prosecutions should declare evidence that might result in acquittal.

In the past these cases might well have gone to Strasbourg. However, there is one key difference, as Alex Salmond pointed out. A Strasbourg ruling would not have overturned a criminal conviction in a Scottish court. This is what has made this such an explosive issue in Scotland. Imagine how the London press would react if hundreds of prisoners , including convicted murderers, were being released because of a judgment in Strasbourg? They would go bananas – just look at the reaction to the ruling on votes for prisoners earlier this year.

It’s not just SNP politicians who believe this is unacceptable. So do many lawyers, including the former Conservative Lord Advocate, Lord Fraser. Perhaps the expert group of the great and the good that the Scottish Government has set up to review relations with the Supreme Court could find some way of ring-fencing Scottish convictions, while not immunising Scots Law from verdicts on human rights. The Scotland Act could be amended to affirm the primacy of Scots Law, but to add that it has to be compatible with European Convention rulings, just as the rest of the UK is required to be. This keeps Strasbourg out of the courtroom. There would be contradictions, unfairness even -–but we have been living with these for more than 300 years. Then place this new formula in the forthcoming UK Bill of Rights. Job done.