Following the decisions of the UK Supreme Court in Cadder v HM Advocate and Fraser v HM Advocate the debate in Scotland on the role of the UK Supreme Court has intensified.  With Scotland having had a Nationalist Government since 2007 (a Government which was re-elected for a further term of 5 years in earlier this month) the position of the UK Supreme Court in terms of the Scottish legal system has been a key issue within the constitutional debate.

Since Scotland and England came together to create Great Britain, Scotland has retained an independent legal system with Scottish Courts having exclusive jurisdiction over criminal matters, but with a right of appeal to London in civil matters.  This was the position that operated for centauries with appeals from the Inner House of the Court of Session possible to the House of Lords, (which became the Supreme Court in October 2009 following the coming into force of the relevant provisions of the Constitutional Reform Act 2005) and criminal cases staying within Scotland.  Things changed, however, with devolution.  In 1998 Tony Blair’s first administration passed the Scotland Act which established a new Scottish Parliament and gave it power over a wide area of issues including Health, Education and Criminal Justice (all of which had been kept separate prior to 1998, but had been the responsibility of the Scottish Office).

The Scotland Act includes provisions that mean Scottish Ministers and the Scottish Parliament cannot act in a way that is incompatible with the Human Rights Act 1998, or with European Community Law.  Crucially the Lord Advocate is included within the definition of the Scottish Ministers.  For anyone who is reading this and is not familiar with Scots Law then the importance of this derives from the Lord Advocate’s role as the head of the prosecution service in Scotland.  All prosecutions on indictment are brought in the name of the Lord Advocate.  Not only does the inclusion of the Lord Advocate matter in terms of the relevant provisions within the Scotland Act 1998 that relate to Human Rights and EC Law, but so too does the inclusion of the Scottish Parliament.  This firmly brings the matter of criminal justice in Scotland under the terms of the Scotland Act 1998.

The situation in Cadder was not really what the Scottish Ministers and Scottish Parliament had done, but rather what they had failed to do.  When Criminal Justice was handed over to the Scottish Parliament they became responsible for ensuring that it complied with Human Rights so as to meet their obligations under the Scotland Act 1998.  In this instance they had failed to ensure that the rights suspects had under the Criminal Procedure (Scotland) Act 1995 remained compliant with Human Rights.  One argument that was brought out by the Cabinet Secretary of Justice, Kenny McAskill MSP, was that they thought there was no need to look at the issue after the highest criminal court in Scotland had looked at the issue only the year before Cadder, and decided that everything was fine.  The problem with that lies in the Constitutional set-up: Parliament (including the Scottish Parliament) trumps the Courts and really Ministers should have been looking at the issue following the jurisprudence from the European Court of Human Rights in Strasbourg, and the considerable body of opinion that was growing that the law had to change.  In the end the UK Supreme Court determined that rights under Article 6 of the European Convention were being breached as a result of the lack of legal assistance for suspects who were detained for police questioning, but not arrested.  I do not intend to dwell on Cadder as that’s not what this post is about and I have written quite a lot on the subject over the months.

In Fraser v HM Advocate the situation was quite different.  On this occasion the Prosecution had not disclosed information within their possession, that materially undermined the case that they had set before the Jury at the original trial in the High Court.  That, the Supreme Court ruled, rendered the trial unfair and therefore a breach of the appellant’s human rights had occurred.  The case in question had become one of Scotland’s most notorious and complex murder cases involving the disappearance of the appellant’s wife, Arlene Fraser.

The details of Cadder and Fraser are not really all that important in terms of this blog post as the purpose is to look at the role of the UK Supreme Court in terms of Scottish Criminal Law.  Scheduled 6 of the Scotland Act 1998 creates a process whereby issues arising as a result of devolution can be raised before the Courts, including an appeal to the UK Supreme Court.  These provisions relate to both Civil and Criminal matters as the 1998 Act does not exclude Scottish Criminal Law from the process.  This has resulted in cases such as Brown v Stott 2001 SLT 59, Cadder v HM Advocate [2010] UKSC 43 and Fraser v HM  Advocate [2011] UKSC 24 which relate to criminal law in Scotland being heard by Judges in London.

This has created a real debate in Scotland as it has effectively ended the High Court’s reign as being the court of last resort in terms of criminal matters.  This was written into the Act of the Union in 1707 and recognised by the House of Lords in Bywater v. Lord Advocate in 1781, where the House of Lords agreed not to consider any further criminal appeals from Scotland.

What would happen if the Scotland Act 1998 was to be amended and the right to appeal Scottish criminal matters to the UK Supreme Court on EC Law or Human Rights matters was ended?  Well, in terms of Human Rights decisions one could take a case directly from Edinburgh to the European Court in Strasbourg for a decision.  While Scotland is a separate jurisdiction from England, in terms of International Law it is recognised as being part of the United Kingdom.  As the UK is a member of the Council of Europe and a signatory to the European Convention on Human Rights then it would be considered that all domestic remedies had been exhausted and it would therefore fall within the terms of reference of the European Court.  There are a number of problems if this were to happen.

Firstly, rather than the High Court of Justiciary losing its status as the court of last resort to the UK Supreme Court, it would do so to the European Court of Human Rights, so doesn’t really address the issue that many (including the First Minister and Cabinet Secretary for Justice) have with the involvement of the UK Supreme Court (well the official reason, one rather suspects that the reason is more to do with the Court’s location being London and they being nationalists who want an independent Scotland).  Secondly, in the UK Supreme Court two very eminent Scottish Judges sit.  They will normally (by convention) both sit on the bench for cases that come from Scotland and have a working knowledge of the Scottish legal system (both of whom had held the highest judicial office in Scotland: Lord President of the Court of Session which also doubles up as Lord Justice-General of the High Court of Justiciary).  The Scottish Justices are sensitive to the distinct nature of Scots Law and that is clear from their judgments.  In Europe not a single one of the judges within the European Court comes from Scotland.  There is no knowledge at all on Scots Law and there is no sensitivity for the distinct nature of that law.

The judgments that have been handed down since devolution by first the House of Lords and laterally the UK Supreme Court have been very fair and very balanced.  They have not upheld every appeal, indeed one of the first criminal cases to go down south on a Human Rights grounds (Brown v Stott) was refused by the House of Lords.  They have not, as far as I can see, tried to force English Law upon Scotland and generally all the justices have been largely in agreement in their decisions.  It is hard to imagine that in the two most recent  high profile cases (Cadder and Fraser) that the European Court of Human Rights would have found any differently.  All that would have happened would have been a much longer period of uncertainty as the Strasbourg Court is well known to be far too busy.  Surely saving them the bother of having to deal with every Human Rights argument from Scotland can only be a good thing (for that Court anyway)?  At least while the UK Supreme Court is involved decisions are arrived at quickly and the uncertainty that surrounds the law as a result of these challenges is minimised.  This is, in my opinion, a good thing.

While from a nationalist perspective appeals to the UK Supreme Court on Human Rights grounds may be a bad thing I see it is the more positive of the two scenarios.  While the UK Supreme Court is delivering judgments in these areas that are fair, balanced and take account of the distinct nature of Scots Law I see no reason to change anything.

• Constitutional Law
• Criminal Justice
• Criminal Law
• Legal System
• Scots Law