Alex Massie

The Problem of the Supreme Court

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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.

Written byAlex Massie

Alex Massie is Scotland Editor of The Spectator. He also writes a column for The Times and is a regular contributor to the Scottish Daily Mail, The Scotsman and other publications.

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