Analysis: Law as it stands is fair and reasonable for all UK citizens - including Scots

Published on Wednesday 1 June 2011 17:13

SCOTLAND always has had its own legal system. The criminal law, among other areas, is unique to Scotland.

The highest court in the criminal hierarchy is the High Court of Justiciary in Edinburgh. The Supreme Court, and its predecessor the House of Lords, have no power to address matters of Scottish criminal law. This position, however, has in a sense become threatened through the operation of human rights law and more particularly devolution.

One of the features of devolution was the creation of procedures to decide disputes over the competence of the Scottish Government and parliament. These disputes are called "devolution issues". In addition to such expected matters as the monarchy and foreign affairs, is the question of whether the Scottish Government, including the Lord Advocate, has acted compatibly with human rights.

The questions of whether Nat Fraser was tried in a manner that violated his human rights and whether reliance on the admissions of Peter Cadder by the Crown without his first having access to legal assistance are "devolution issues", rightfully decided by the Supreme Court.

The law as it stands is fair and reasonable. The two Scottish-trained justices of the Supreme Court, Lord Hope and Lord Rodger, are eminently qualified to take part in appeals coming from Scotland. Both have held the positions of Lord President of the Court of Session and Lord Justice General of the High Court of Justiciary - Scotland's top judge. Indeed, the suggestion that there is a lack of expertise of Scots law in the Supreme Court is frankly absurd. Further, there is a constitutional convention that Scottish justices will sit in on appeals emanating from Scotland. Lord Hope has written the leading judgments in both the Fraser and Cadder cases.

The UK, not Scotland, is one of the 47 parties to the European Convention on Human Rights 1950. It appears to me to be untenable to have a position that leads to different human rights standards applying as between England and Wales and Scotland. Arguments made against the present situation on the basis of time and cost are misplaced.

Recourse to the European Court of Human Rights in Strasbourg is, compared to the Supreme Court, considerably more lengthy and expensive.

Criticism of the Supreme Court's knowledge of Scots law appears to fail to consider the fact that the European Court of Human Rights is comprised of a judge from each member of the Council of Europe - the UK judge being Sir Nicolas Bratza, who trained in England.

Pride in Scots law is something all Scots should have. Its defence is rightfully in the mind of the government and parliament. However, one cannot forget that Scotland is part of the UK. The Supreme Court ensures that all within the jurisdiction of the UK are accorded equal human rights protection.

•Dr Paul Arnell is a lecturer in constitutional law at Robert Gordon University.