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?