What sort of legal independence?
27 May 11
Criminal cases and the Supreme Court
It was fairly predictable that the SNP Government would seek to make political capital from the UK Supreme Court reversing the Scottish appeal court in the high profile Nat Fraser case.
Some of the comments have been regrettably overdone, such as the First Minister belittling on TV the knowledge of Scots law in a body of which two of the five members in the case in question were former Lords Justice General. Nevertheless it would be fair to say that there is a section of opinion within the profession that, even if it does not share the Government view that the pre-devolution position should be restored with no criminal appeals to London at all, is uneasy at the breadth of the role that the Supreme Court has defined for itself under the Scotland Act.
It is not just that the small number of cases that actually make it to London seem to have a disproportionate impact on the criminal process in Scotland: the width of the "fair trial " guarantee in article 6 of the Convention makes it possible to construct a devolution issue out of a significant proportion of the legal issues that arise in day-to-day criminal court practice.
However it would be difficult to argue that there are different levels of human rights, so as to permit a definition of those which would justify a Supreme Court appeal as opposed to those which would not, and to that extent we have to leave it to the good sense and discretion of the courts (at both appellate levels) in deciding when to allow leave to appeal.
The question of principle is rather whether London or Strasbourg is the appropriate destination for human rights points arising in Scottish cases. And it is here that the Scottish Government's arguments look decidedly thin. How can it be said that the European judges have greater knowledge of or expertise in cherished aspects of our system than the UK court with its complement of two of the most experienced Scots lawyers? How is justice more accessible in a foreign court whose cases typically take some years to conclude? Would our politicians be making the same fuss if the decisions had been reversed? (Go back a decade or so and the Scots courts were holding the police power to require information as to the driver of a vehicle to be in breach of human rights, but were reversed on appeal - no great outcry over that one.)
There are fears for the separate identity of Scots law, but the substantive criminal law will not be much affected by these developments. As long as we choose to recognise the Human Rights Convention (and I hope no mainstream party will go so far as to urge complete withdrawal, in an independent Scotland or otherwise), its developing jurisprudence is bound to assume a steadily greater prominence within our body of law, just as it will in that of any other ratifying country. To that extent the existence of a separate legal system will have, in broad terms, no greater, but also no lesser, reality than does political independence within the European Union. But to the extent that the common rights recognised under that umbrella are an expression of our shared humanity, that should strike a chord with Scots as something to celebrate.
This is one subject at least where we should fill in any chips on the shoulder about decisions being taken in London.