When two tribes go to war…

Wading through the reams of newsprint and blogspace on the Supreme Court stushie has been fascinating.  There have been some excellent articles and opinion pieces, not least from John Scott, Alex Massie, Kenneth Roy at the Scottish Review and Lallands Peat Worrier.  But for every considered  rumination, there has been a blood and thunder pronouncement – most of them emanating from Scotland’s Justice Secretary Kenny MacAskill.

The burd suspects that the reaction has been just as the Scottish Government calculated or at least hoped for.  A rather tedious constitutional justice matter has been turned into the hot political potato of the moment.   Their handling of this issue suggests that a key part of the Scottish Government’s strategy over the next five years will be picking fights with Westminster, or rather anything that exemplifies the trappings of London doing wrong unto Scotland.   It may be a potent tool in the campaign for independence but what is less clear is how the politics of grievance fits with the positivity mantra.  There is a risk – a big one – of the SNP slipping on these old comfy slippers and forgetting to take them off again.

Is this the right sort of issue with which to go to war with the London tribe?  It may get the SNP’s dander up, having judges sitting at UK level pronouncing on matters of Scottish criminal law when we supposedly have an independent legal system, but are these the matters for which the populace will follow their leaders to the barricades.  I have my doubts. These high-falutin’ constitutional issues go right over folks’ heads, my own included.  If getting independence means we get to appeal to Strasbourg rather than London, then many folk won’t be volunteering for active service.

But they do tap into an important part of the Scots psyche and one which resonates with voters: our inherent need to have someone standing up for Scotland’s interests.  No matter how the question was put in the polling frenzy pre-election, voters by a country mile reckoned Alex Salmond had these qualities in abundance and that the SNP trounced the other parties in its ability to put Scottish interests first.

Which is why the SNP is quite happy to bluster on this extremely nuanced issue.  Do voters care that the two judges sitting on the UK Supreme Court are amongst Scotland’s most respected, most experienced law lords?  No. The headline that sticks is Kenny MacAskill’s – that here are two daytrippers up from London thinking they can tell us how to run our judicial system.  Do voters care that withdrawing our share of the funding would threaten their ultimate right of appeal on civil cases or on reserved legal issues?  No, because that level of detail is being deliberately obfuscated to score the political point.

Moreover, the fact that the UK has always held ultimate jurisdiction over civil matters – previously through the House of Lords and now through the UK Supreme Court – is being glossed over, even though the lawyers-turned-politicians in the Scottish Government will be readily familiar with this inconvenient truth.  Why let the facts get in the way of the narrative?

So far, so furiously political.  But what of the substance?

The burd is struggling to understand – unless of course I have just missed it – why few have made the case for the UK Supreme Court in terms of what it does do and can do for the Scottish people on a wide range of legal issues.   A quick look at current cases before the Supreme Court – and there are several from Scotland – demonstrates this.

One involves an extremely complex issue surrounding rights of appeal after a refusal of Disability Living Allowance.  A decision here that ultimately leads to an applicant enjoying further rights of appeal against a decision to refuse DLA might have considerable, positive implications for disabled people in Scotland.

Another case involves Scottish Widows.  Again, the issues are complex but the outcome of the case could have considerable positive or negative implications for the Scottish financial industry and also, importantly, investors.  Cases from other parts of the UK on reserved legal issues would also impact here – there is one, for example, seeking clarification on exemptions to application of the Hague convention which covers child abductions.

Undoubtedly, all these cases and more could and would be heard by the European Court of Human Rights in Strasbourg but as others have commented, it has a huge backlog.  Until it is properly resourced and expanded, the chances of Scottish appellants receiving swift justice are precisely nil.

But behind it all lies a simple fact, one pointed out by the Law Society of Scotland.  Had Scots law simply incorporated changes required of it by the adoption of the European Convention on Human Rights and the creation of  UK and Scottish Human Rights Acts, then these human rights appeals on criminal justice matters would have been wholly unnecessary.  The First Minister would not have needed to voice his concern – sincere of course – about the cost of all these appeals.

The fact is that Scots law has not been independent since the advent of human rights legislation.  It is simply that the legal establishment has chosen to disregard its implications and refused to adapt our laws and conventions in order to comply.

It is an all too familiar Scottish sense of superiority that has resulted in a peculiar solidarity between the anti-establishment SNP and one of the bastions of institutional Scotland – something that no doubt has Gerry Hassan, a long time advocate for the dilution of the power of such artifices, wringing his hands in despair.

And as the two tribes line up for the next skirmish, the burd wonders if the Scottish Government might not be better investing its energies in reforming Scots law to comply with human rights legislation.  Taking on the UK legal system or the Scottish legal establishment – which would serve the interests of Scotland and her citizens more?


19 thoughts on “When two tribes go to war…

  1. We always need that court of final appeal; decisions are sometimes wrong, and there are miscarriages of justice. And if the courts get it wrong and it’s overturned at the Supreme Court that doesn’t make the Supreme Court wrong. If the new government will take on the failings in the Scottish Legal System – particularly in its implementation of the HRA – that will indeed be a legacy worth shouting about. I’m confused at the minute by a Justice Secretary who won’t encourage judges to implement the harsher sentences they could implement given the legislation is already there because the government must protect the rights of the judges to be free from political interference – and then him wading in using exactly the opposite argument as a reason to go to Europe! It rather proves the point that judges are not free from political interference, does it not…

  2. Don’t agree that the Salmond/McAskill did this to pick a fight; I think two things happened :

    1) genuine indignation, not long after the SNP mandate, at the release of the man convicted of murder in a Scottish system to be followed by a likely successful appeal by the nutter Luke.

    2) the Brit nat press were looking to create a fight and reported the affair as they do.

    Salmond didn’t want a fight whilst he’s asking politely for Scotland bill powers.

  3. I’d have gone for something along the lines of “Not sure about this Court having that impact on a Criminal matter. That’s the sort of thing we’d need to address prior to a Referendum.” Nothing to see here…

    Bottom line – regardless of your views on someone’s guilt or innocence, I’d like to think that Plod messing with a pretty key bit of the evidence does tend to mess with your right to a fair trial. Whatever the Court, it’s a fair bet that’d be the conclusion.

    The grandstanding is a bit irritating for me.

  4. No.
    There should be a direct connection to the Eurpean Court and EU legal process by the Scottish legal process.
    If that means a Supreme Court equivalent in Scotland so be it.

    You have just seen a decison made by due process in a Scottish court overturned by a court that has, by the terms of the Treaty of Union, no jurisdiction to so do.
    This may be due to an oversight, but that is the case.
    Tha parallel I used – a French court for instance – is exactly the right one. The UK Supreme Court has no more right to overturn a verdict arrived in Scottish court than it has to overturn one arrived at in a French court.
    That present conditions are unsatisfactory goes without saying but it doesn’t mean it is permissable to ignore formal legal positions.
    In 2009 when responsibilities the of the House of Lords were supplanted by the UK Supreme Court much more consideration should have been given to the anomalous situation re Scottish Law and how it could be included in a system which paid due respect its independence but dealt with difficult cases.
    The independence of Scotland’s legal process was ignored as an inconvenience.
    I hardly think it appropriate that Court which apparently only has the power to intervene in Scottish legal affairs in CIVIL cases should presume to be free to release convicted murderers.
    I’m afraid Lord Hope himself made similar observation previously so I have no idea why he has gone against his own previous advice.
    I repeat – they must have known what they were doing and what would be the furious outcome. Are you telling me it was impossible to have a conversation with Scotland’s Justice Secretary to decide the best way to deal with this?

    • The Treaty of Union does not apply in these cases. It has been superceded by a later Treaty.

      As to whether it was impossible to have a conversation with the Justice Secretary – of course it was – whats it to dow ith him? Its the fact that the Scottish legal system got it very, very wrong. This court is “interfering” because if it doesnt there would be a serious miscarriage of Justice. But who cares about that when theres an opportunity to have a grievance?

  5. Very brief history, not Long after the acts and treaty of union the first scotslaw case went to the house of lords on appeal. (green shields circa 1710) so we have been using a UK appeals court for civil cases near enough the whole time since the union. Scots law also has to adhere to statute law from Westminster. As English law had to be compatible with the Human Rights Act 98 so too did Scotslaw. The fact that it wasn’t has little to do with judgements from the supreme court/HoL and more to do with the fact Scots law maintains a ridiculous air of arrogance and superiority and didn’t make the correct judgements to comply with the HRA in the first place.

    The supreme court appeals system would not be necessary if Scottish judges were able to apply the law, in particular the HRA, properly first time round.

    I am not a huge fan of the Supreme court, particularly when there are only two scottish law makers sitting. However it is a necessary evil to ensure scots law remains a fair system compatible with higher laws from Europe. Should we bypass the supreme court and head straight to Strasbourg, the time and costs involved would be more than most, the state included could afford. Especially considering the number of cases being heard by the supreme court at the moment. It’s also important to remember Strasbourg currently has no Scottish judges sitting so there would be no input from proponents of scotslaw which could in the long term weaken it’s ability to create precedents.

    This comment was more in response to other comments who seemed to be missing the point of the supreme court rather than the article itself.

    Apologies for any off words but this comment system doesn’t seem to work well with iPad and it won’t let me edit without deleting everything to get to where I want to edit. Damn it doesn’t let me scroll to read over it either, :/ * off should be odd

    • Your comment reads fine! And thanks for injecting a little history and reality!

      Someone – possibly Paul McBride – suggested the solution to the perceived anti-Scottish bias on the Supreme Court would be to appoint a 3rd Scottish judge so that there are always 3 Scots judges on the panel of 5 hearing any Scottish cases. Seems sensible to me!

      And thanks for reinforcing the points of the article! It is always pleasing and reassuring to know that one’s thoughts are not just one’s own!!

  6. Thank you for a very perceptive post.

    This is of course a political stushie and a symptom of the SNP desire to work at unpicking and de-satbilising the union.

    Of course we have always had a supreme court – it used to be called the House of Lords. It is part and parcel of the Scots legal system. There are Scots Law Lords.

    Having matters decided by our own supreme court may well be better and more accessible than substituting if for Strasbourg. To argue otherwise is just using the European level as a substitute for our own things at UK level and another angle to undermine the union.

    I feared that the SNP election in 2007 would mean we would be bogged down in an endless attempt to niggle and destabilise our part in the UK. I was wrong. The SNP were more constructive than that.

    However, it would seem that the SNP, having achieved a majority will do exactly this this time. I am sad the SNP got elected and I wonder how many SNP non independence supporters will come to regret that vote.

    Interersting that you note our Scots sense of superiority – Wha’s Like Us – not one of our best qualities and leads to many of our institutions and features being reviewed through rose tinted spectacles. This in turn leads to some unedifying fights and some spurious arguments, which at their worse drift into some predictable need to find an English angle so we can have some anti-English tribalism.

    I thought Alex Salmond was more clever than this and that is why the SNP had started to do well. He was beginning to answer the question, as he needs to, why go independent rather than just could it work?

    It remains to be seen whether these are clever strategies or foolish ones by nationalists.

    For my part, there is always a suspicion that there exists a hopeless romantic at the heart of Scottish nationalism who has gone and run off with the nationalist fairy to pursue his dream.

    Whether the coming arguments make the nationalists appear foolish and tribal or, as someone commented above, puts the rest of us Scots on the back foot to make a case for retaining the UK remains to be seen.

  7. Some very good points – the idea that Scots Law is perfect and is being forced to change by “English lawyers” is not only dangerous, but wrong.

    Many of those supporting the SNP Governments position and comments seem to be quoting the Treaty of Union. They seem to forget that Treaties often are amended and superceded by later treasties – otherwise we’d still be at war with France! When the UK signed up to the European convention on Human rights, we gave up power over our own laws in those areas, on both sides of the border. If Scots law is not compaitible with ECHR, then it should be changed, and quite why no previous Government has decided to do it properly (of whatever form) is a mystery to me. I was shocked to learn last year that you could be questioned by Police in Scotland without a lawyer!

    We as a state (ie the UK) have two choices, we can either have a UK body to act as the arbiter in cases involving breaches of Human Rights, or we can have Strasborg. The Labour Government set up the Supreme Court to do this partly so that UK citizens didnt have to find the money to go to Strasborg and the ability to wait years for a decision. Judges from all parts of the UK sit on it, including Scotland, and generally Judges with “local knowledge” are involved in case in the various countries of the UK – unlike at Strasborg where there is a single UK judge out of 50 jurists – and he doesnt always sit on cases involving UK citizens.

    I think the UK Supreme court offers a better, quicker and cheaper system for our citizens to get their human rights than before. If the SNP want a seperate court for Scotland, they need to get indepedence first.

    One of the many comments I’ve seen is that we may lose the need to have corroborating evidence. This is a non-sequetor, as we dont need to give that up to comply with the Cadder judgement. If the Government does try to bring forward such legislation then its because they want to give it up, not because they need to.

    • I’m not getting into the corroborative evidence thing – it’s a whole different issue and let’s wait and see what the Carloway review recommends on this and other issues relating to Cadder.

      But otherwise John, couldn’t agree more! The Supreme Court in itself was one of Blair’s better measures.

      • Yes, it was. Its ironic that part of the reason it was set up was to remove the judicary from the political sphere (ie take away the appeal function from the House of Lords). The idea being that we should have political interference in the judicial process.

  8. I think this is the start of what we will look back on as brilliant campaign tactics by the SNP.

    All this is doing is keeping the unionist collective eye off the strategic ball – that is the development of a positive and credible case for retaining the union.

    For reactionaries it is far easier to react than to develop such thinking and, for as long as they have things to react to, that is exactly what they will do.

    I won’t have gone un-noticed that in the midst of all this, Alex Salmond has appointed his campaign manager for the referendum. Do we really believe that Alex is investing anything more than tokenistic effort in this stooshie – just enough to present the bait in fact before turning his thoughts to more strategic matters?

    The devolution settlement is littered with similar anomolies; defensible with highly technical and abstract explanation but extremely easy to present as undemocratic, unfair or imperialistic in layman’s terms.

    I’d expect a steady stream of similar rockets to be set off in the coming months.

    • Perhaps. But there is a big risk in that if all the rockets are high politics rather than the low politics that impact on people’s daily lives, they might blow up in the SNP’s faces. There again, perhaps not!

      And yep, politically I get exactly where the Scottish Government is coming from and what they are trying to achieve, I just object to our government doing so, when it knows that the political game being played out is not necessarily in the Scottish people’s current interests. I have no doubt that Scotland having its own supreme court or direct access to Strasbourg will be a better or at least, acceptable alternative solution. Once Scotland is independent. In the meantime, people need the UK Supreme Court to be there as a final court of appeal on human rights issues but also on civil and reserved matters. Otherwise the SNP is suggesting that the Scottish people deserve less protection under the law than others on these islands. Surely not?

  9. There is an awful lot of people completely missing the point here.
    This was planned.

    There should be no UK Supreme Court as the Scottish legal system is not only independent from the system in operation in England, Wales and Northern Ireland but also fundamentally different in most areas. The Scottish Legal system should have its own formal relationship with the European Court and EU law and this oversight should be remedied as soon as possible.

    It is inapproriate for The “UK ” Sureme Court to overturn decisions reached in Scottish courts and those who took part in this decision must have known exactly what they were doing when they did so and been aware of the legitimate furore that would result.
    I would question whether their action was not possibly politically motivated.
    I’m afraid there is a lot of naivety being shown on this matter by perfectly well intentioned sources.
    There is no way in the world that it is proper or acceptable for one jurisdiction to be overturning decisions made under another jurisdiction and in the process opening cell doors in another country.
    The sensible and couteous thing to do would have been to either refer this back to Scotland with the observation that it could be reconsidered by the Scottish system who could pass it on the the European Court or, failing that, pass it on directly to the European Court which would have been discourteous.
    Fraser’s legal team should have been advised to take it directly to the European Court which would have been proper.

    Can you imagine the furore there would have been had the “UK” Supreme Court overturned a decision of an Irish or French court – but due to the guaranteed independence of Scottish law that is an exact parallel.

    Or how about a German court overturning a decision in an English court.

    The legitimate and robust reaction of the Scottish Government has ensured that they are unlikely to try this stunt again.

    • Dave, you are missing a key point – there has always been recourse to the UK for Scots law. All civil cases have always had an ultimate right of appeal to the House of Lords and now with the Human Rights Act, the Supreme Court has jurisdiction over human rights issues in all jurisdictions. That is the way it is, and I don’t recall the SNP opposing this either at Westminster or Holyrood at the time it was created.

      Your exact parallel is way wide of the mark – having the UK Supreme Court is actually helpful to Scottish justice and those who seek it because cases can be heard much more quickly than Strasbourg can.

      I’m more concerned with giving people proper recourse under the law than scoring political points – whomever is trying to make them – and any attempt to dismantle vital avenues of appeal without appropriate alternatives in place is extremely dangerous and potentially damaging to Scottish people’s rights.

  10. Thank you for an extremely perceptive and well reasoned posting. Maybe the best thing ultimately will be to have a Supreme Court within Scotland, but with judges of the calibre of Hope and Rodger. As a then practising lawyer I was sad when both went to London. In their different ways each demonstrates a deep understanding of Scots law and Scottish culture together with an ability to innovate in line with developments in society, such as our understanding of human rights.

    • The reason they went to the UK Supreme Court is because they had achieved all they could here in terms of their careers and contribution. A Supreme Court in Scotland will make sense when we are independent – until then, we are subject to the ties that bind us to the UK. We don’t have to like that but to try to dismantle or undermine the Supreme Court simply because it is a UK institution is plain wrong, particularly when that threatens people’s protection under the law.

  11. Interesting analysis.

    Maybe we should also consider that sometimes our legal system makes mistakes. These mistakes should be recognised and corrected. Nobody or no system is perfect and it would be completely naive to try and assert otherwise.

    Part of the sabre rattling that has gone on in the last week alludes that it is wrong to question the system and that because it is Scots Law, then the system is ipso facto perfect. That can’t be allowed to happen.

    • Agree wholeheartedly. No legal system is perfect and sometimes wrong decisions are made. That is why no matter what our constitutional status is we always need a court to protect our human rights and to act as an ultimate appeal arbiter.

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