When the Labour Government introduced European human-rights legislation in Britain in 2000, few could have foreseen the constitutional and legal crises it would provoke.
The Human Rights Act became law with no debate in the Commons and no discussion on the issues the legislation embraced. The terms of the act were considered bland and boring. But lurking within it and the process of introducing the legislation to Britain were two ticking time bombs.
The first involved the competing rights to privacy and freedom of expression. At that time, with the internet in its early days and before the emergence of social networking sites such as Facebook and Twitter, it would have been impossible to predict either the seismic culture changes to our attitudes towards personal privacy or our willingness to share intimate details of our lives with a huge circle of virtual friends and with the wider world.
The second potential problem was the decision to establish the Supreme Court, ostensibly to speed up legal appeals on the basis of human-rights laws. It was argued that appealing to the Court of Human Rights in Strasbourg took too long and a court in Britain with that specific purpose could deal with matters more speedily. The court was given powers over courts in both England and Scotland, although it was never envisaged that decisions in individual criminal cases in Scotland could be overturned as we saw in the Nat Fraser case last week.
There are two faultlines running through the establishment of the Supreme Court, one legal, the other political.
The first is a resentment felt by judges in Scotland against their counterparts in the Supreme Court, some of whom are Scottish themselves, but the majority of whom are not. Judges sitting in Scottish courts do not take kindly to the notion that their decisions can be summarily dismissed by the Supreme Court, in many cases by judges who have not been trained in Scots law.
The political element of the current crisis has its roots in the election of an SNP Government in Scotland, a party which is ideologically opposed to any dilution of the independence of the Scottish legal system. It is, of course, not just the SNP who would object to that dilution, but with a majority in Holyrood they have the power to act to counter the threat.
To an already torrid mix you can add another tension: that which is emerging between the judiciary and parliamentarians in England, again provoked by the Human Rights Act. Many politicians have been concerned at judges’ willingness to grant injunctions, particularly anonymised injunctions, to celebrities wishing to stop the press printing details of alleged sexual liaisons. Those politicians argue the judges are going beyond a reasonable interpretation of the law and are in effect introducing new privacy legislation by default. And introducing new legislation, they argue, is the job of Parliament, not of the courts. This tension has led to the extraordinary spat between the judiciary and a politician who used parliamentary privilege to name both Fred Goodwin and Ryan Giggs in the superinjunction controversy.
The result is a mess.
There area number of possible solutions to the constitutional wrangle between Scotland and England. One would be, as the SNP suggest, to bypass the Supreme Court and refer appeals on the basis of human-rights legislation directly to Europe.
Another would be ensuring that Supreme Court deliberation on the decisions of Scottish courts is carried out with a majority of judges trained in Scots law, and their recommendations passed back to Scottish courts, rather than summarily overturning their decisions.
The main issue here is not the supremacy of the Scottish courts. The decision has already been taken to concede Europe has jurisdiction over decisions taken by all courts in Britain if they breach human-rights legislation to which the UK has signed up.
There is, however, nothing to prevent the SNP considering pulling out of the European legislation. There is no compulsion on every European country to sign up to the human-rights legislation. Scotland could have its own court of human rights to review judges’ rulings.
How this conflict is resolved remains to be seen. What’s certain is that it has given Alex Salmond a powerful hand in the constitutional debate playing out after the SNP’s landslide election win. How he plays it will be fascinating to watch.
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