Has anyone noticed how the 'defence of human rights' has suddenly been seized upon as a convenient proxy for unionism? The legal experts wheeled out on Newsnight last night seemed to have an unanswerable point when they claimed that the SNP's politics were blinding them to the benefits of a system that allows for speedy human rights appeals to the UK Supreme Court - unanswerable, that is, until you remember that a Scottish court could easily perform precisely the same function. As Alex Salmond pointed out, the 'speed' issue is also a red herring, because a dedicated Scottish bench for human rights cases could do the job just as quickly as the UK Supreme Court, with the possibility of a laborious appeal to Strasbourg still there as a final safeguard, just as it is in every other European jurisdiction from Ireland to Russia. When you bear all that in mind, the experts' argument is stripped down to the basic assumption that they daren't utter aloud - that a predominantly English court is bound to be superior in quality to a Scottish court. The cringe rears its ugly head again.
That very assumption led Isabel Fraser into an amusing circular argument on the same programme. She suggested to the First Minister that the Scottish courts couldn't possibly be left to their own devices, because they had been shown to be wrong before. But how precisely had they been shown to be wrong, Isabel? Because, she explained, the UK Supreme Court had overruled their decisions, therefore they must have been wrong!
To sum up :
1) This isn't about human rights, because the European Convention is incorporated into Scots Law and no-one in government is suggesting that should change.
2) This isn't about speed, because a Scottish court could act just as fast as the UK Supreme Court (or faster).
3) This isn't even about the Supreme Court's ability to adjudicate on genuine devolution matters. The problem is the way that the Scotland Act irrationally defines anything relating to the European Convention on Human Rights as a devolution issue. Since the High Court of Justiciary performs exactly the same function in Scotland as the final court of appeal for criminal cases that the UK Supreme Court performs in England and Wales, it would be far more logically consistent for a Scottish court to also deal with human rights appeals in criminal cases, and for the Supreme Court to do the same for cases in its own criminal law jurisdiction. The present (or should I say emerging) set-up is colonial in character.