The Problem of the Supreme Court

Thursday, 2nd June 2011

Readers in England and other less-fortunate lands may not have been following the latest stushie in Scotia new and braw. This time it's the law that's the problem. Or rather, the UK Supreme Court's ability to rule on Scottish appeals on Human Rights and other EU-related business. Last week this led to the conviction of Nat Fraser, imprisoned for the murder of his wife Arlene, being quashed on the not unreasonable grounds that the Crown had failed to disclose vital evidence that cast some doubt on the most important part of the case against Mr Fraser. Kenneth Roy, sage of Kilmarnock, has an excellent summary of the affair.

Cue much rumpus and uproar and the predictable sight of politicians embarrassing themselves on television and in the popular prints. The independence of Scots law is not to be denied and we'll have no foreign judges interfering thank you very much. There's something to be said for this, though it might have been more convenient for the SNP to have thought so before enthusiastically supporting the incorporation of ECHR into Scots law.

Once that happened, however, appeals to a non-Scots court became a matter of inevitability. The question then becomes one of which foreigners are acceptable. The SNP have delivered their answer: Strasbourg is fine, London is not. This is not, to be fair, an argument made entirely along party lines. The former Lord Advocate, Lord Fraser of Carmylie (a member of the last Conservative government) appears to broadly share Alex Salmond's view though as best I can tell it remains the minority position.

In truth, I suspect the problem is one of psychology not justice. If the occasional Scottish criminal appeal can be heard in London (there have been only two since the Supreme Court was established and, previous to that, on average just one a year to the Privy Council) then this appears in some sense to suggest that Scots law must on occasion swear some kind of fealty to a UK court. This rankles. It is one thing for such appeals to be heard in Strasbourg where Scots law may take its chances as a full and equal member of the european legal fraternity; quite another for the same appeal to be heard in the British capital.

So here again emotion battles reason. The law, like the church, was for long years one of the repositories for and guarantors of a sense of Scottishness and a reminder that the Union was just that and not an incorporation. This was important and still is so today. Nevertheless, no legal system is an island and for all its distinctiveness Scots law is touched by events and developments beyond its immediate remit.

In this instance the emotional pull of Salmond's argument - which, again, has some resonance - confronts the practical advantages of routing these rare cases to London, not Strasbourg. If Salmond insists that the problem with the UK Supreme Court is that it lacks knowledge of Scots law even though two Scottish justices sit on the court (and take the lead in Scots-related cases) and then invites us to take seriously that this issue is not rather graver as it applies to a Strasbourg court on which no Scots judge sits then he asks us to believe we are fools or that he is a fool himself. Or, I suppose, both.

All this before one considers the time and expense saved by tasking the UK court to consider these matters. The First Minister also says he wants a "Scottish Court" to have the final say in these questions but to the extent that the English justices on the Supreme Court fall in behind their Scottish colleagues' recommendations one might argue that, in practical if not strictly theoretical terms, such a court already exists even if it sits (exiled!) in London.

Granted, precedents can build slippery slopes and one could imagine circumstances in which the proliferation of criminal appeals on "human rights" grounds end up making the UK Supreme Court the de facto last court of appeal, trumping the High Court of Justiciary. To that extent, Salmond's suggestion that leave to appeal to the Supreme Court should at least be granted by the High Court first may have some merit.

However I am far from expert in these matters and so leave it to more learned commenters to recommend a worthy course and, indeed, position to take. What I do know is that Kenny McAskill is an ass and his talk of withdrawing Edinburgh's contribution to the Supreme Court's running costs on the grounds that "he who pays the piper calls the tune" an indication that perhaps he might be better employed in a different department.

UPDATE: See John Ross and the Peat Worrier for more.

Filed under: Echr (15 more articles) , Law (122 more articles) , Salmond (83 more articles) , Scotland (500 more articles) , SNP (219 more articles) , Unionism (51 more articles)

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ndm

June 2nd, 2011 3:16am Report this comment

-- However I am far from expert in these matters and so leave it to more learned commenters to recommend a worthy course and, indeed, position to take...

I would suggest that this is one of these areas where civilian control of the judicial process is significantly more important than deference to our learned friends.

For what its worth, and regardless of the number of worthies who troop through Balliol, the recent stushie with the Herald is only the latest demonstration of ignorance of Scots law by our learned friends in England.

David Leishman

June 2nd, 2011 9:06am Report this comment

It seems silly to me. If, for example, the High Court of Judiciary was to hear an appeal based on the Human Rights Act they would have to take in to account the jurisprudence of the European Court of Human Rights in the exact same way as the Supreme Court currently does. The problem with Scots Law, and English Law, is that they are both subject to the European Convention on Human Rights and Strasbourg jurisprudence; therefore they are both compromised to the same extent. The only way around this is for the UK Government to repeal with Human Rights Act.
Salmond in the past made such a fuss about the Scotland Act coming in to force ahead of the Human Rights Act which meant that the Convention was applicable here a couple of months before it was applicable in England. I wonder, with hindsight, if he now regrets that.

Subrosa

June 2nd, 2011 1:09pm Report this comment

There is one important difference between the UK Supreme Court and Strasburg.

Strasburg is unable to quash convictions. The UK Supreme Court can do exactly that.

The FM gave details at FMQs an hour ago.

Am Firinn

June 3rd, 2011 7:09pm Report this comment

Mr Massie, there have been six Scottish criminal cases at the UK Supreme Court in its brief existence, and some two dozen if you include the Judicial Committee of the Privy Council 1999 - 2009. Before 1999 none of this would have happened; it is at least demmed odd that devolution should have led to a degree of interference in Scots criminal justice Westminster had denied itself since at least 1876. Moreover, the Supreme Court heard the Fraser case on the basis of Article 6 - the right to a fair trial. On that ground the Uk Supreme Court could interfere in practically any case: if you don't get the answer you want; then of course your trial was unfair! Moreover, it is simply nonsense to suggest the UK Supreme Court provides a valuable filter preventing people being hit with the expense and difficulty of litigating in Strasbourg. For one thing, cases can go to Strasbourg without ever having been anywhere near Their Westminster Lordships, and for another, if I don't like the Supreme Cout's decision, I can still go to Strasbourg!

Jan Cosgrove

June 4th, 2011 3:07am Report this comment

The usual call for repeal of the HRA 1998, so predictable and so ignorant. The HRA incorporates into UK domestic law certain provisions of the ECHR - this obviously was legislated in 1998. We signed the Convention in the early 1950s and ratified it too. If anyone can remember British citizens could and did take cases to Strasbourg and win before 1998. We had a reputation for it. What happened if the ECHR judgment went against the UK? Britain had to consider its response and often had to change its law. After 1998, what has happened? Well, for a start, courts HAVE to take its provisions on board (previously they evolved sort of "taking it into account" (sort of). Now also, as a Bill is presented in Parliament, a SofS will attest that it is HRA compliant. And higher courts have the power, if they wish, that when making a judgment based on an existing law, they may take the view that all or some parts of that Act are not compliant with the HRA/ECHR and can issue a Declaration of Incompatibility which the Minister has to report to Parliament who can then consider whether or not (and how if so) the legislation should be changed. All this palaver to uphold the doctrine of the supremacy of Parliament. Most of the idiots braying about the ECHR and the HRA are clearly ignorant by choice. Are we to denounce the Convention itself??? Repealing the HRA may make some feel Euro-sceptic macho but it won't do what they slaver for. And it may just make some UK citizens have to ensure far harder roads to seeking justice for breach of rights (and it's a hard-enough route now). Witness, the 3 nurses who had part of the Protection of Vulnerable Groups Act 2006 declared incompatible by our own courts with Article 6.1 of the ECHR (due process).

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