It would be a pity if the debate about the role of the Supreme Court, formerly the Judicial Committee of the House of Lords, were confined to criminal law (Herald Letters).
In 1707, article XIX of the Treaty of Union was intended to prevent any appeal from the Scottish Courts being heard in England. Because of the drafting of the article, in fact and in breach of the spirit of the Treaty, appeals in civil law were soon taken to the House of Lords. Decisions which bound the Scottish courts were often reached by a court which knew nothing of Scots law and in which there were no Scottish judges. The result was to damage the consistency of Scots legal principles by injecting elements from an alien system.
In recent years care has been taken to ensure that Scottish appeals are normally heard by a bench in which Scottish lawyers have been in a majority. But the arrangements are not ideal: judges participate in the process, albeit as a minority element, who have no training or experience in the legal system which is being applied. Conversely, it is not ideal from an English point of view that Scottish judges, occasionally a majority of Scottish judges, decide English cases in the supreme appellate court.
In criminal law, on the other hand, the purity of the Scots legal system was preserved. The House of Lords did not hear appeals from Scotland. The present issue arises from the fact that the Supreme Court is now charged with the duty of hearing criminal appeals when the point involved relates to human rights matters. It has become clear that human rights jurisprudence is developing to bring forward many cases in this category.
On the one hand it is undesirable that the Treaty of Union should not further be breached in this way. On the other hand, it has been demonstrated that human rights decisions in the Scottish criminal courts must be capable of rectification (see the Cadder and Fraser appeals) and should be rectified more speedily and cost-effectively than they can be in Strasbourg.
The solution is to establish a final appeal court in Scotland, composed of Scottish judges, to adjudicate on civil appeals from the Court of Session and on human rights matters in criminal appeals from the Court of Criminal Appeal (with an ultimate appeal to Strasbourg). The role of the Supreme Court in London should be confined to English, Welsh and Northern Irish cases.
Walter Reid,
Beauly, Bridge of Weir.
Following the decisions of the UK Supreme Court in the Fraser case and the Cadder case, Alex Salmond protests strongly that the court should have no place in the Scottish legal system. I would like clarified whether he and those of a similar view consider the verdicts of that court in these cases to be unjust, and on what grounds?
Alan Fitzpatrick,
10 Solomon’s View, Dunlop.
Given the tenor of his remarks and threats to cut the funding of the Supreme Court, it seems that Kenny McAskill wants Scotland to be independent, but not its judges or its system of justice.
Alex Gallagher,
12 Phillips Avenue, Largs.
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