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!

Reflections on the brutal end to the Siege of Ardenlea Street

Margaret and Jack Jaconelli’s 35-year life in their family home ended yesterday under a brutal assault by over 80 police officers, council workers and 20 riot vans, initiated by Labour-controlled Glasgow City Council.

The Jaconellis are now homeless, but this indomitable, archetypal Glasgow working class family won’t be for long - they will pick themselves up and start again, finding a new home, and making a new life. But one thing is certain - they won’t give up their fight for justice, aided by their lawyer, Mike Dailly of the Govan Law Centre.

THE SCOTTISH PRESS

The coverage of this story by the Scottish media can be characterised in general as belated, inaccurate and in some case, deliberately and consciously biased in favour of Glasgow City Council. Journalists, if some can even be dignified by this honourable appellation, were lazy and incurious, accepting at face value the many distorted misrepresentations fed to them by GCC’s publicity mill and rumour machine, cooperating supinely in the Council’s attempts to present the Jaconelli’s as greedy and unreasonable.

These people would not have recognised a significant human interest story and the dubious political dealings that surrounded it if it reared up and bit them on the arse. That is the most charitable explanation of their behaviour: there are others.

I suppose if your journalistic instincts begin and end with scanning a press release by the powerful and well-resourced, or having cosy lunches and briefings from their minions, instead of taking a trip to the heart of the problem - 10 Ardenlea Street - and talking to those directly involved, then this is the kind of lazy copy you will deliver to equally uninterested editors.

But many of these news outlets had another agenda - they were Labour-supporting organs, unionist to their core, and an election was coming up. A story that showed a relentless and unfeeling persecution of ordinary Glaswegians did not sit well with the image of the People’s Party, Labour - the party of John MacLean and Keir Hardie, of  Red Clydeside, champions of the under-privileged. Such a story might bring home to Scottish voters that Scottish Labour, the puppet regime of Blair/Mandelson'/Brown’s New Labour, in the run-up to May 5th, had been hiding for decades behind the corpse of the old Labour Party, trotting it out, decaying and rotten, but covered in bright paint , to fool the people of Scotland.

This could not be allowed to happen. Bluntly, they hoped to bury the story, and when the Jaconellis inconveniently and bravely put their heads above the parapet to shout that the Labour emperor had no clothes, to shoot them down with a volley of lies, distortions and unfounded accusations.

But not even such a feeble excuse for a democratic press could not ignore a story when it got legs, and they were reluctantly forced into correcting some of their inaccuracies by events.

THE SCOTTISH SUN

It must be said that there have been honourable exceptions to this behaviour, notably in the form of the Scottish Sun’s coverage of the Jaconellis, significantly attributable to a freelance journalist, Paul Drury, who did what real journalists do - went to the source, went to the locations, got to know the people involved, asked real questions, checked and cross checked facts.

Of course the Sun sensationalised the coverage a bit - after all, they are the tabloid’s tabloid and that’s what they do. Unfortunately, in their attempts to point up the egregious disparity of treatment between that meted out to the Jaconellis and the enrichment of the developers who swarmed over the Commonwealth Games site, they may have at times unintentionally harmed the Jaconelli’s interest with their ‘£3.5 million pound Gran’ headlines, unwittingly feeding the Glasgow City Council lie that Margaret Jaconelli was pursuing a huge and unrealistic settlement figure, something that was never true.

But on overwhelming balance, the Jaconellis and their supporters are grateful to Paul Drury and the Sun for acting as virtually the only real counterbalance to the hostile and biased coverage of the rest.

TELEVISION

The Scottish television coverage, although not visibly biased, was belated and superficial, and predictably only interested when the saga entered its last, more sensational stages. Newsnight Scotland, often a byword for leaden, dull coverage of Scottish affairs, with occasional flashes of brilliance - usually when Isabel Fraser is in the interviewer’s seat - never touched the story.

Even in the last few days, they have given a much higher profile to the Glasgow University student protest evictions than to the much more significant brutal and over-the-top storming of the Jaconelli’s home. But then that’s the West End, much closer to the hearts of Scottish media types than the forgotten ghettos and people of Glasgow East.

Television, of course, completely missed Margaret Jaconelli’s confrontation, first with Gordon Matheson, Leader of the GCC Labour Group, then with Ed Miliband, Leader of the Labour Party outside the Scottish Labour Party Conference on Saturday last. Only the Sunday Post, as far as I know, ran this story and published the photograph of Margaret and Ed Miliband.

THE POLITICAL PARTIES

Labour in Scotland maintained a deathly silence on this, as well they might have, since Labour-controlled Glasgow City Council under Gordon Matheson are the villains of this sordid piece. The Tories were predictably absent - after all, they are the party of money, privilege and exploitation of working people: Why would they speak? The pathetic Scottish LibDems don’t have their troubles to seek, and stayed well below the parapet.

But the strange behaviour of the Scottish National Party over the Jaconelli case deserves some examination. After a couple of statements  of concern by the First Minister some considerable time ago, a brief visit by Alison Thewliss, GCC SNP councillor for the Jaconelli’s, and one or two minor expressions of concern by others, a great blanket of silence fell over the issue.

Using such limited resources as I have, I repeatedly and persistently tried to secure some level of involvement from the Party at all levels. The responses to this have, in the main, been to ignore me completely (the SNP have been terrified of bloggers since the University of Cheese scandal, although they recognise their value) or to offer feeble excuses such as “Well, Margaret hasn’t come to my constituency surgery”, prompting the irascible response from me that this vulnerable, overstretched woman, struggling with her problem, with the terminal illness of her brother in England, the abandonment of her virtually at the door of the courtroom by her previous lawyer, and facing the full weight of QCs, District Valuers, et al, needed her elected representatives to visit her, not the other way around.

The Jaconellis are - or at least were - SNP supporters. Much bloody good it did them, at least up to the eleventh hour, when two offers offers to mediate in the dispute came from the Scottish Government,  a fact little reported anywhere in the media. (GCC declined both offers, as they had refused Margaret’s formal request for mediation and ADR.)

I repeatedly told the SNP that this story would get bigger, and eventually break into the media when the inevitable confrontation occurred. I had secured tentative interest from Jon Snow and Channel Four News, but then world events of staggering implications took over their whole agenda. (I have also kept Ken Loach informed through his film production company.)

The SNP should have been publicly and vocally on the right side of this dispute since the start, because it is a uniquely Scottish dispute in the Labour heartland that they need so badly to capture. Doing the right things was clearly the right thing to do here - but they didn’t, displaying all too often the rather uncertain grasp of new media - an occasionally old media - and its significance that too often characterises the Party’s approach.

They are going to have to do a damned sight better if they are to remain in power after May 5th. They still have my full and committed support, but, I regret, my faith is a liitle dented after the Jaconelli failure.

Margaret Jaconelli–the ultimatum from GCC late this afternoon

(SEE END OF BLOG FOR EVENING UPDATE AND BBC VIDEO)

My understanding (by telephone 4.20 today) is that Glasgow City Council, having originally rejected the offer from the Scottish Government to mediate in the dispute, this afternoon offered to accept mediation if Margaret first vacated her home, i.e. mediation will only be accepted by GCC if the Jaconelli’s give up their sole bargaining chip in the fight against a rich, powerful adversary, with all the resources of the law, law enforcement and Labour political clout on their side.

Margaret has rejected this – it was her decision in consultation with her husband. I have no first hand knowledge of what her lawyer Mike Dailly’s advice was, but I have no doubt that, whatever his advice was, he will still fully support his client in the new situation.

As a professional negotiator by background and training, I have only this to say -

Mediation is the process of an independent third party attempting to assist parties facing deadlock and conflict to reach an amicable resolution to their dispute. A mediator is not a arbitrator – he or she does not offer a preferred solution or binding decisions, and the parties are free to resume their previous courses of action if the mediation process fails.

But an essential pre-requirement of mediation is that the parties have defined their settlement points and identified the gap that separates them, and crucially, that they are willing to indicate their willingness to enter the mediation with an open mind and to vary their positions if the mediation process is successful.

This is the bargaining gap that must be bridged by the parties, assisted by the mediator.

Margaret has always been willing to do this. GCC has not, and gave no such indication today. The gap between her and Glasgow City Council is money and money only, and it is the distance between her target settlement figure (unknown to me) and Glasgow City Council’s last offer of £90,000.

If Margaret has not yet identified her target settlement point, she must do so now, and there must be no suggestion by either party that an easy option of splitting that difference is the right solution.

If this is done, both parties – Glasgow City Council and Margaret – then know exactly what separates them, and can assess the costs to themselves of remaining intransigent or accepting mediation to assist a compromise solution.

More importantly, the people of Glasgow and the wider Scottish public must know what this money gap is, and assess the behaviour of the parties in relation to it.

EVENING POSTSCRIPT
Tonight's BBC news carried a report on the Siege of Ardenlea Street, and also a written statement from Glasgow City Council. The misinformation continues - GCC say that Margaret Jaconelli has been offered £90,000 and alternative accommodation. No such detailed joint offer has been made or formalised in writing.

Temporary rented accommodation was offered last year - I emphasise, TEMPORARY accommodation, and the £90,000 offer was only made at the 11th hour this year by telephone, with no written details.

£90k and PERMANENT rented accommodation have never been offered, but in any case, rented accommodation is NOT appropriate.

The Jaconelli's home of almost 35 years is being taken from them by GCC - they wholly own it, and the only appropriate offer is full compensation permitting the purchase of a comparable new home in an area of their choice. Glasgow City Council have destroyed Dalmarnock.

The Herald, the Court and Margaret Jaconelli

I have taken down my most recent post (a collection of today’s tweets) on the Margaret Jaconelli judgement because I now accept that the judgement, dated 3rd March (!) was available in the court, at least since yesterday. Gerry Braiden of The Herald contacted me with this information, and also sent me a copy of the judgement.

He accessed the freely-available judgement at the court, as he has a perfect right to do, and only ran the story when he realised that a freelance new agency had also accessed it. This is in accordance with good journalistic practice, and I accept completely that he acted in good faith and in accordance with professional ethics. I appreciate his information and clarification on this matter.

I still take issue with the superficial way in which the media in general have handled this case, and the inaccurate facts presented in many instances.

But the matter is now firmly in what I believe are the safe and principled hands of Mike Dailly of Govan Law Centre, and that an appeal is highly likely.

I hope it will be successful.