The UK Supreme Court and the Scottish legal system

Fancy a wee dance at the Palais des Droits de l’Hommes?

No, it’s not a dance hall for right-handed men, it’s the location of the Cour Européenne des Droits de l'Homme - the Court of Human Rights in Strasbourg.

When the furore over the UK Supreme Court’s role in relation to Scottish Law and the Scotland’s legal system started, my heart sank. I feel obliged to comment, because the issue is a fundamental one, and relates to the bigger independence argument.

But I am not a lawyer, and have no legal training. Such expertise as I have is managerial, industrial and commercial and my professional training relates to human resources, with a specialist expertise in negotiation. My claim to a right to comment on a different kind of HR - not human resources, but human rights, is the right and duty of a citizen and a voter to form a view, to act on it, and where possible to promote it.

What follows is my understanding of things. I fully expect to be challenged and corrected on inaccuracies, and will welcome anything the extends this vital debate on the integrity of Scots law.

THE BACKGROUND

The legal system in Scotland is unique, and totally distinct from English law, which also applies to Wales. Celtic in origin up till the time of the Normans and the Angles, it began to change in the early 12th century under Dabíd mac Maíl Choluim - King David the 1st, King of the Scots, king of Alba. It began to change further in the 15th century, and principles of Roman law increasingly influenced civil law and canon law. It is a mixed legal system. The Act of Union did not affect the integrity of Scots law, with the law remaining completely distinct from that of England and Wales, but from 1707, Scotland, England and Wales shared a common legislature through the UK Parliament.

The differences from the law of England and Wales and Northern Ireland law are highly significant in criminal law, property, inheritance, trusts, the law of evidence and family law. There a fundamental differences in the age of legal capacity (16 in Scotland versus 18 in England), the size of juries (15 versus 12) and the verdict is determined by simple majority, not by unanimity as in England. There can be no hung jury, as in England. A Scottish jury has a choice of three verdicts (as opposed to two in England) - guilty, acquittal or not proven.

(Civil cases have a jury of 12, with a minimum of 10 required as a quorum, and a jury can be hung if tied after a minimum of three hours consideration.)

In the areas of tax and commercial law, there are strong similarities.

Since the Treaty of Rome, Scots law has been affected by European law and the European Convention on Human Rights. Devolution, under the Scotland Act of 1998 also gave the Scottish Government limited capacity to legislate in specific areas.

FUNDAMENTAL PRINCIPLES

The Act of Union of 1707 was entered into voluntarily (leaving aside historical questions on exactly how ‘voluntary’ a process accompanied by major division, intimidation and bribery could be)  by Scotland.

When the Scottish people decide to end that union, it will be ended - there is no question of permission being granted by Westminster, and that fact is generally accepted in Scotland and in the United Kingdom.

There is no capacity by the UK government to alter or amend the Scottish legal system and Scots law - only Scotland and Scots can do that.

Membership of the European Union is voluntary, and under the Union, it is the nation state of the UK that is a member. (An independent Scotland would also seek membership of the EU.)

Members states of the EU can leave at any time if they decide to do so, and that decision would be determined by  a referendum.

Scotland was neither able to opt in to the EU, nor could it opt out independently of a UK-wide referendum.

As things stand, the UK government could call a referendum at any time and take the UK - and Scotland - out of the European Union, even if a majority of Scots wanted to stay. Conversely, the UK could vote to stay in the EU even if a majority of Scots voted to come out. (This is analogous to the situation at the 2010 general election, where Scotland effectively voted for a Labour Government, but wound up with a Tory/LibDem coalition governing them.)

CADDER and FRASER CASES - THE UK SUPREME COURT JUDGEMENTS

The UK Supreme Court was established by the Constitutional Reform Act of 2005 and commenced operations in 2009.

Here is how it describes its functions on its website -

The Supreme Court is the final court of appeal in the UK for civil cases. It hears appeals in criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

This appears to be crystal clear - it hears appeals in civil cases across the UK, but in criminal cases, only in England and Wales.

The UK Supreme Court is the court of last resort and highest appellate court in the United Kingdom, but - and this is critical to the debate - the High Court of Justiciary remains the supreme court for criminal cases in Scotland.

But a problem has reared its head …

Because of parliamentary sovereignty in the UK, the court has only limited powers of judicial review. It therefore cannot overturn primary legislation made by Parliament, but it can overturn secondary legislation, e.g. if that legislation is found to be ultra vires of the powers in primary legislation allowing it to be made.

And under the Human Rights Act 1998 (section four), the court can make a declaration of incompatibility which means that it believes that the legislation subject to the declaration is incompatible with one of the rights of the European Convention on Human Rights. Such a declaration can apply equally to primary and secondary legislation. The legislation itself cannot overturned by such a declaration, but it ceases to have effect. Powers under section 10 of the act are allow ministers to amend the legislation by statutory instrument to remove the incompatibility.

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. This gave global recognition to the fact that there every human being had certain inalienable rights that transcended the actions and the laws of individual sovereign countries.

The General Assembly of the United Nations proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations  ----- to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

This is given legal force in the European Community by the European Convention on Human Rights and by  the Court of Human Rights in Strasbourg.

The problem, now causing such such heat and light, but little illumination in the media, is caused by the fact that this legislation has permitted appeals to the UK Supreme Court in criminal cases, where it is not the court of last resort under Scottish Law, on the basis that a criminal judgement infringed human rights.

In October last year (2010) Peter Cadder appealed against his conviction by a Scottish Court on the basis that under Scots law, the police were allowed to question him without him having had access to a lawyer. In any other country in the European Community covered by the European Convention on Human Rights, such an appeal would have gone to Strasbourg, but in the UK it went to the UK Supreme Court, who overturned the conviction, stating that police could no longer questions witnesses without a lawyer being present. Moreover the decision was retroactive, affecting a large number of previous judgment under Scottish Law.

Effectively, the law of Scotland had been overturned in a large number of Scottish judgements in criminal cases, in spite of the fact that this was not supposed to be within the remit of the UK Supreme Court.

On Wednesday of last week, the UK Supreme Court overturned the criminal conviction of Nat Fraser for the murder of his wife, on the basis that the withholding of certain facts was an infringement of his human rights, and that the jury was likely to have reached a different verdict had they known these facts.

THE DEBATE

The debate triggered by these two controversial judgements is one of principle, not on the rights or wrongs of the specific cases, although to listen to media comment, and to some legal comment, one would think it was merely a question of expediency rather than principle.

Is the debate political? Of course it is, on both sides of the argument.

The law is created by political action by communities, but is meant to stand outside of politics., which it never entirely succeeds in doing, except as an ideal. Scotland is in a unique situation, in that it has its own ancient legal system, but is not a sovereign state, although nothing in the act of union that created the sovereign state of the UK can challenge the independence of the Scottish legal system. Or so Scots thought, till Cadder and Fraser and the UK Supreme Court called that into question …

THE ARGUMENTS SUPPORTING THE ROLE OF THE UK SUPREME COURT

As I understand them, the arguments in support of the UK Supreme Court’s role in relation to Scots law may be summarised as follows -

1. Since human rights appeals in criminal cases are inevitable, and would have to go to Strasbourg anyway under the European Convention on human rights, the UK Supreme Court offers a quicker route to resolution, with the advantage that British judges based in the UK would decide on the merits of the cases rather than foreigners.

2. Since no legal system is perfect, and the Cadder and Fraser cases have called into question aspects of Scottish justice, the UK Supreme Court is “doing us a favour in Scotland by dealing with human rates cases fast and efficiently …” (Mike Dailly, Govan Law Centre).

3. The Brigadoon Bubble suggests that Scotland has a perfect legal system - in reality, no legal system is perfect.

4. Lord Hope is a Scottish judge and has special knowledge of Scots Law and Scottish affairs, and is therefore well-equipped to advise and guide his fellow judges on Scottish human rights appeals.

5. No Scottish judges sit in the European Court of Justice in Strasbourg. Strasbourg is overburdened and takes years to deal with cases.

6. Alex Salmond and the SNP government are guilty of Anglophobia and simply want to bypass London and to cultivate a sense of grievance against the UK that will serve their aim of independence in a referendum.

The arguments against the role of the UK Supreme Court in Scottish criminal cases where a human rights claim has been lodged are as follow -

1. The idea of a court with a majority of judges from England determining human right in Scotland is ludicrous.

2. The European Convention on Human Rights was written by a Scot, David Maxwell-Fyfe.

3. Lord Reid is a Scottish lawyer who serves as a Strasbourg judge.

4. If a specific bench is required to consider human rights legislation as it applies in Scotland and to speed up cases, one can be set up in Scotland.

5. The Strasbourg Court  covers 40 jurisdictions in Europe. The case for a Strasbourg back stop on human rights - implementing a convention written by a Scot - is to put Scotland in exactly the same position as any other European country.

6. The distinction between the Strasbourg Court and the UK Supreme Court is that Strasbourg doesn’t strike down Scottish convictions and open cell doors - it cannot quash convictions or order the release of prisoners, and it gives a proper examination to the checks and balances within the Scottish judicial system before it reaches its conclusions.

7. We are in this unacceptable situation vis a vis the UK Supreme Court because of totally unforeseen consequences of the Scotland Act, which may turn the Scottish criminal law system on its head if something is not done.

8. If the application of Scottish law and Scottish judicial procedures under human rights law needs to be looked at critically, we must do that in Scotland, with a free debate in over our criminal justice system, not because a court with a majority of English judges says so, over-ruling seven High Court judges in Scotland.

CONCLUSION

Those arguing in favour of the UK Supreme Court continuing to behave in this way on human rights cases in Scotland appear to fall into the following categories -

Unionists who want Scotland to be as subservient to the UK as possible, especially  in the lead-up to the independence referendum in the second half of this Holyrood Parliament.

The usual suspects in the media, who want to portray the SNP Government of Scotland, re-elected with a decisive majority by the people of Scotland, as anti-English, emotional and rabble-rousing, all the thing that the SNP is emphatically not, but their unionist media critics are, with the difference that their Scottish shills are effectively anti Scottish …

(In this context, Paul McBride, QC a prominent Scottish defence lawyer and a prominent Tory commented on Newsnight that the media criticism of the First Minister, Alex Salmond “bordered on the hysterical …” I would add to that perceptive and objective remark, from someone who is not an SNP supporter, that hysterical criticism has characterised the unionist media comment since they wakened up to reality on May 6th 2011, and realised that the independence of Scotland was infinitely more likely than it has been at any time since 1707.)

Defence lawyers who are happy to see as many alternative courts of appeal as can be found to challenge the judgment of the courts. This includes a range of defence lawyers, from those who might well deserve the appellation given to them by Kenny MacAskill (which I won’t repeat!) to highly responsible lawyers like Mike Dailly of Govan Law Centre,  a crusading lawyer on behalf of the less privileged in our Scottish society, a man whose motives are beyond question.

But it is worth mentioning that a prominent Scottish defence lawyer like Paul McBride, QC says that Alex Salmond “is actually right in law”. Paul McBride sees the central fact as being that you can get to the UK Supreme court by bypassing the Scottish courts, but you can’t do that in England, which he sees as unacceptable.

WHERE DO I STAND?

I am not an ‘Anglophobe’ - nor is anyone in the SNP - but I do profoundly distrust the UK Government and the UK Establishment when their very existence is threatened by Scotland’s legal and legitimate aspirations to be independent, and I distrust the British Establishment’s profound and insidious influence over the legal system in the UK.

I have recently listened again to Tom Paulin’s play, All the Way to the Empire Room, in the 1994 BBC broadcast, which dramatises the negotiations in the 1920s on Ireland’s independence between the Irish negotiating team and Lloyd George and Winston Churchill. The outcome of those negotiations, unscrupulously manipulated by the UK, with a mixture of brutal threats of extreme violence and blandishments (similar to 1707 in Scotland) led to the partition of Ireland, the Irish Civil War and the death of Michael Kelly, the Irish military leader. Only now is Northern Ireland coming out of the long, dark night that resulted from that betrayal.

I stand squarely with the Scottish Government, with Alex Salmond and Kenny MacAskill and the ancient Scottish legal system against the incursions of the UK Supreme Court.

Get your hands off Scots Law, UK Supreme Court!