The UK Supreme Court–the debate polarises and takes on new dimensions

I wrote yesterday’s blog (see below) last night, prompted by an email from John Higgins, as a kind of rumination on the issues. But this morning, this debate takes on a new form, given extensive coverage on the front page of Sunday Herald leading to a five-page analysis on pages 10 to 14. The debate is not entirely balanced, but I am not a great fan of the concept of balance if it suggests equivalence where none exists. I would class the Sunday Herald as partisan on the side of the Union (I am partisan on the side of independence) and be in no doubt, in spite of much high-minded protestations to the contrary, this debate is about the Union and about the impending referendum that threatens it.

The battle lines are being drawn, and the professional classes of Scotland, including the legal profession, are deciding on which side of those lines they will stand. To say that they are not influenced by their party affiliations and their stake in the survival of the Union is disingenuous. The Scottish Parliamentary election result of 2007 was an unpleasant surprise to the UK Establishment, to Westminster, to unionism and to the Labour Party in particular: the 2011 election result has been a profound and unsettling shock to them.

In deciding where we, the people of Scotland stand in this debate, it is important not to confuse the concept of justice and the rule of law with the system of justice and those who administer it – the courts, the lawyers, the advocates, the judges. The justice system is just that – a system and a process that attempts to dispense justice, but often fails, as all processes sometimes do, because they are operated by fallible human beings, who have personal objectives, personal ideals, personal political orientations and affiliations, ambitions and careers.

The law, as a profession, is in substantial part, a commercial enterprise, one that seeks to uphold high ideals and principles within the context of making money and securing career advancement. The professional bodies that represent the lawyers are like any other professional body, e.g. the medical profession, the police, architects, accountants, estate agents(!) – part high-minded defenders of ethics and principles, part trade union, attempting to maximise, secure and defend the privileges and earnings of its members.

In this latter role, they have always been spectacularly successful, and that success is in no small part due to their influence on the political process through their dominance in the UK Parliament and the Lords, and their ability to accommodate themselves to the influence of the political process on them. The legal profession across the globe operates in this way. To the degree that they achieve a balance between these often competing roles, the society of which they are a part is a just one.

The Sunday Herald story and report – and a bit from Scotland on Sunday

In the first column of Tom Gordon’s report a grenade is thrown into the debate -

But the Sunday Herald can reveal the present row may be just a warm-up act for a far bigger constitutional battle. For while MSPs were getting in a lather over Salmond’s street fighting style, the Supreme Court was  last week being asked to kill off an entire act of the Scottish Parliament.

Over three days, QCs acting for Britain’s biggest insurers argued a 2009 Act allowing people to sue for asbestos exposure should be struck down.

No high-minded defence of human rights here – this is a defence of commercial profits at the expenses of human rights.

And if we jump across to Scotland on Sunday, we get this little nugget from Eddie Barnes -

UK Ministers have warned Alex Salmond he must seek their support on the wording of his independence referendum or face the possibility of a legal challenge that could end up in the Supreme Court.

Scotland Office Minister David Mundell said a dispute over the crucial wording of the question could end up in the courts, as Unionist supporters would probably challenge it.

It looks like Alex Salmond is going to need what Tom Gordon (above) calls his “street fighting style”. In fact, if the unionists keep this line up, a “street fighting style” may be called for on a wider front than just Holyrood.

Back to the Herald, and on pages 12 and 13, the combatants line up, or rather, they are lined up in the way the Sunday Herald sees as most advantageous to the union case. Tom Gordon has a whole page described as “Analysis”, a label that requires scrutiny in the light of the content.

The first part is effectively an attempt to suggest that Kenny MacAskill’s reputation in the legal profession is threatened by his stated position on the UK Supreme Court. (Kenny Mac Askill also has a street fighting style, and I for one am glad of it – Scotland is going to need it in the years ahead of us.).

There is a very sour grapes reference to the Megrahi release – a belated recognition by the Herald that the best efforts of unionists to besmirch the Justice Secretary’s reputation on that issue had miserably failed, quoting Solicitor Advocate John Scott as saying that

… Salmond and MacAskill had squandered a huge amount of goodwill built up by the SNP government in a remarkably short period of time with their “cheap” personal attacks.

“I think the Megrahi decision played well with the legal profession, as did trying to scrap short-term sentences …”

“ … Uniting the legal profession against them is something that has happened remarkably quickly. The only way to draw a line under it is to apologise.”

Ian Smart, a past president of the Law Society, joins the chorus against Salmond and MacAskill, but revealingly refers to “the micro-politics of the legal profession”.

They don’t look so micro from where I’m sitting …

Later in the Analysis piece, we discover that Ian Smart helped found the Labour Action movement in the 1980s.  Nae politics there, then …

Paul McBride, QC gets a reference and is quoted here (and also gets a few column inches on the next page) as a defender of the First Minister’s position, but is described by Tom Gordon as “an isolated voice.” (He is not, except in the pages of the Herald and in the minds of the unionist opposition in Holyrood.)

Page 13 is headed Legal Opinion, and Colin Boyd, a former Solicitor General for Scotland (1997-2000)  and former Lord Advocate (2000-2006) gets more than three quarters of the column inches. He is now a Labour Life Peer in the House of Lords. Nae politics there, then …

Colin Boyd is very high-minded in his opening statements, as befits an eminent lawyer who has held two of the highest legal offices in Scotland and is now a peer of the realm, the realm being the United Kingdom.

It’s about “the independence of the judiciary and the rule of law”. Aye, so it is …

But it is more than that. It is a debate about our values and the protection of fundamental rights and freedoms.

So it is. It’s about my values as a Scot, and my fundamental rights and freedoms as a Scot, under the law of Scotland, under the Act of Union, and under the Declaration of Arbroath. So far so good, Lord Boyd of Duncansby – ye’ll get nae argument frae me there, so long as whoever you mean by “our” doesn’t refer to some concept of Britishness, or British identity, a concept I don’t subscribe to.

Lord Boyd goes on to say that “Judges are not above criticism and in a free society, the idea that they can be immune from criticism is clearly wrong.”

Wait for the but, as my old boss used to say in negotiations when someone on the other side said something I agreed with – wait for the disjunctive coordinating conjunction.

And the but arrives, right on cue …

But a free society is one underpinned and guaranteed by the rule of law and the independent judiciary. Judges must be able to take decisions free from outside influence.

Well, I agree with that too, as a democrat must. But I have a but too, Lord Boyd. Without wishing to fall into the post hoc, ergo propter hoc fallacy, I ask the following question – why was the UK Supreme Court set up in the first place and who exactly who made the decision to set it up in 2009?

The simple answer to that, which tells us little about the political processes behind the scenes is that The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009.

WHAT THE UK SUPREME COURT SAYS ABOUT ITSELF 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.

The Court was not set up to be the final court of appeal for criminal cases in Scotland, but it has now used the Human Rights Act to question key judgements of the Scottish High Court, to open cell doors, and to lay the Scottish Government open to huge financial liabilities. And its express right to be the final court of appeal for civil cases in the UK, including Scotland, now looks likely to be significant too, in the light of today’s asbestos report.

There is no UK law, but this sure as hell is beginning to look like it …

But it’s that bit highlighted in red that worries me - It hears cases of the greatest public or constitutional importance affecting the whole population.

What is the referendum on Scottish independence but a question of the greatest public and constitutional importance? And what is the definition of ‘the whole population’ going to be? I define it as the electorate of Scotland, and their absolute right to bring to an end the Union, but ‘the whole population’ in the minds of the Colonial Office – sorry, the Scottish Office, and in the minds of the Colonial Governor – sorry, Secretary of state for Scotland, Michael Moore and his assistant, David Mundel seems to be the population and the electorate of the UK.

Lord Boyd now goes on to a number of very revealing statements. He quotes Brian Taylor, the BBC’s Scottish political editor – “He said it seems probable that Mr. Salmond’s rhetoric will encourage the Supreme Court to be yet more minimalistic in the scope of its involvement in Scottish criminal law”.

Lord Boyd sees this as “the danger” – I see it as the highly desirable outcome, not of “rhetoric”, but of the legitimate call of the First Minister of Scotland, with  a renewed and enhanced mandate from the people of Scotland to the UK to be very careful about how they act in relation to the Scottish legal system and Scots law.

Lord Boyd gives passing reference to Lord McCluskey’s opposition to the incorporation of the European Convention on Human Rights into domestic law, i.e. in my words, UK law – for it is hard to see it as anything else.

Lord Boyd quotes Lord McCluskey’s description of the European Convention on Human Rights as “offering a field day for crackpots, a pain in the neck for judges and legislators, and a gold mine for lawyers.”

Gaun yersel, Lord McCluskey! Alex Salmond now faces a threat of legal action for saying much the same thing about gold mines and lawyers.

Lord Boyd then goes on to say many things about the Scottish legal system, and its role in preserving Scottish identity “during nearly three centuries of Union with England.” Of course, I applaud that, although I thought it was just over three centuries, but I bow to Lord Boyd's superior knowledge of these things.

But he then goes on to the now familiar unionist argument that Strasbourg is overburdened and the UK Supreme Court is simply helping them out to speed up the justice system.  I think I may safely describe this as a unionist argument, although Lord Boyd clearly advances it as a legal argument, and of course can maintain an absolute distinction between the political and the legal arguments. (Lord Boyd sits as a Labour peer in the House of Lords and Labour is a unionist party.)

Lord Boyd closes his Herald piece by saying that “It matters not whether one believes in an independent Scotland or Scotland within a Union”.

Oh, aye, it does, Lord Boyd – it matters to me, because I believe in an independent Scotland, and I would have thought it matters to you, as a Labour Lord and a member of a Unionist political party. I don’t think the great debate will be served by claims from either camp that they are heroically objective about these fundamental constitutional issues. And I believe, as I hope you believe, that it is harmful to the very ideals and values you and I do share to obscure this stark political reality.

You say “This debate is about who we are and what we stand for.” I agree – but we must be clear about that ‘we’, and whether it is we, the Scottish people in favour of independence, or we, the Scottish people who favour the Union, or we, the population of the UK, who may well have even more complex and contradictory stances on the matter.

I am a Scot and I stand for the independence of Scotland, and the elected Scottish Government’s right to put that fundamental choice to the Scottish electorate without interference from the UK in any of its many manifestations, from Westminster to the Supreme Court.

You ask three other fundamental question, Lord Boyd -

Do we aspire to be a society which is governed by the rule of law, upholding fundamental rights and freedoms?

Are we prepared to test our laws against international standards and conventions?

Do we respect the independence of the judiciary in upholding the rule of law and protecting our rights and freedoms?

To all three, I answer Yes, as a Scot, under Scottish and European law and the International Convention on Human Rights, as represented by the European Court of Human Rights in Strasbourg. The judiciary I respect  is the Scottish Judiciary, operating under the law of Scotland, and the European judiciary in Strasbourg.

I did not wish the UK Supreme Court to be set up, but while it exists as a reality so long as the UK exists, I will respect its rulings, but feel entirely free to question their relevance, validity, and their wisdom.

If I feel as a citizen, that the UK Supreme Court is being politicised by those attempting to preserve the Union and the UK at all costs, I will defend its right to resist such an insidious process. If it seems to be yielding to such political pressures, I will not respect its independence, nor will I respect the judiciary who are part of such a perversion of The Act of Union and of democracy.

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!