Wednesday, June 1, 2011

The human rights red herring

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.


  1. well said, that's indeed the heart of the matter.

  2. Yes, James, you have described the main points of the argument and summed up accurately.

    Some seem to think that too much is being made of it by our government (and I would agree that Kenny’s idea of withholding the money from England’s Supreme Court is pointless, as Osborne could simply withhold the same amount from Scotland).

    However, given that the unionist parties have made it clear that they are prepared to do ANYTHING to save the union, who can trust them that this encroachment into Scots law by London is not the first steps of an insidious campaign to reduce those things that mark our two countries’ separate identities. (“Oh we run your appeal court; we might as well run your whole legal system”).

    Surely, if Scotland is a separate jurisdiction, its courts must have the final say in justice, even those adopted into Scots law from Europe. I read that the court has been called upon to act on Scots cases only twice in as many years. Why then would these cases not be heard in a courtroom in Scotland, by Scottish judges, rather than (I think is the case) by a majority of English judges in London?

    It need not cost a fortune. There is no need for the silly kind of money that was spent on the building in London. I’m sure that given the very few cases that are heard from our country, money could be saved by keeping it all in Scotland, using an extant courtroom in Edinburgh.

  3. "given that the unionist parties have made it clear that they are prepared to do ANYTHING to save the union, who can trust them that this encroachment into Scots law by London is not the first steps of an insidious campaign to reduce those things that mark our two countries’ separate identities."

    And Jim Wallace in particular, Tris. Now that he's moved from being a devolved politician to being a member of the UK government, he seems to be exhibiting the classic zeal of a convert.

  4. Wallace a wily trickster in a long and dishonorable line of unionist dissemblers and opportunist to the soles of his patent, legal slip ons buckled.

    A quisling by any definition of the term and in the Raj tradition of so being and labelled by Gramsci the "comprador class" (and there seems to be a veritable infestation of them coming out of the woodwork at the moment distributed a distribution curve from viciously neanderthal to unionist categorized "finest minds" to snake-oil salesmen and women: Rife but useful as they are flushed out of their holes to name their world as they really see it for a change - a clarifying process).

    Fascinating how aggressive sheep can be (speaking as a countryman, nil surprise. But amongst the "liberal" chattering classes? Sublime irony).

  5. Erratum: "...distributed over a..."

  6. It should be noted that in England and Wales for a criminal case to proceed from the court of appeal to the supreme court it needs the permission of referring court. That is not the case for “devolution” issues concerning article 6 of the ECHR. Indeed Nat Fraser was refused permission to raise a devolution issue by the high court of justiciary, but he went ahead anyway. That was the case because it was always assumed that the high court of justiciary would be the senior appellant court in Scotland. But because the Scottish government must abide by the ECHR and because article 6 of the ECHR guarantees the right to a fair trial all criminals have to do is find the one chink or mistake that allows them to claim that they did not get a fair trial and off they go. That is certainly not the spirit of the thing. Lord Tankerness should be agreeing with Alex and doing something about this ridiculous situation instead of beating the unionist drum!