The decision in Cadder v HMA is one which should be welcomed. It has secured the basic right to legal advice before police interview and provided protection against self-incrimination.
It is a right which most Scots - or at least those whose knowledge about police stations comes from watching The Bill on TV - have assumed already existed. It has finally brought Scotland into line with all other European countries - we are the last jurisdiction to do so. We have now had corrected an embarrassing omission in our criminal procedure - what's not to like?
Reports of the reaction from some legal sources and politicians suggest a response at best begrudging - and at worst openly hostile. Most of all, I have been dismayed by the response of Scottish ministers. In seeking to justify emergency legislation, Alex Salmond and Kenny MacAskill have portrayed the position as an unfortunate one which tips the balance against the prosecution of crime and, worst of all, stems from unwelcome interference by London judges. This response does not bear proper examination.
The starting point is the application of the European Convention on Human Rights. Those who disapprove of the incorporation of convention rights into our legal and criminal justice system can properly claim this is the root of the "problem".
Those of us who approve of and seek the development of convention rights within our legal system, and those who have to apply the convention, have to recognise and embrace the consequences.
It is important to appreciate that the convention only guarantees minimum rights within signatory states - the basic rights within any criminal justice system necessary to secure a fair procedure or trial. Also, the convention and the European Court of Human Rights are concerned only with procedural fairness - such as the right to a fair trial - not with the substantive criminal law as such.
In the constitutional settlement under devolution, convention rights were placed at the heart of the constitution. Under the Scotland Act, the government was deprived of power to act in any way not compatible with convention rights. This is something Scots ought to be proud of. It does not - as seems to be suggested - place us in any disadvantage to the rest of the UK. Rather, it robustly secures human rights within our governmental structure.
Under the Human Rights Act, which applies throughout the UK, legislation which is contrary to convention rights cannot be struck down in the same way, but it must be interpreted in a way which secures human rights and, if this is not possible, any such legislation falls to be declared as incompatible with the convention rights. The practical result is much the same - such legislation will require to be addressed and "fixed" to secure convention rights. Within this structure, concerns have been raised about the effect of the Scotland Act provisions upon the Lord Advocate and the prosecution of crime.
While the Lord Advocate remains a member of the Scottish Government, she cannot act in any way in the prosecution of crime which is not in keeping with convention rights. But in practical terms this is no different to the requirement upon the prosecution which arises under the Human Rights Act and applies throughout the UK - if the Director of Public Prosecutions in England acts in a way which infringes convention rights, any such action is unlawful. Claims that the Lord Advocate has acted in a manner which breaches the right to a fair trial, or claims that the prosecution anywhere in the UK has breached the right to a fair trial, are ultimately adjudicated by the UK Supreme Court (UKSC). In this way the application of human rights and standards of procedural fairness are harmonised throughout the UK.
That is the constitutional scheme we have adopted. It is not the UKSC decision in Cadder which is unfortunate, but the failure to recognise and remedy the unfairness in our procedures before now.
The provision of a basic right to legal advice before police interview has nothing to do with "balancing" competing rights. It seems to be suggested by the Justice Secretary that the provision of this right takes something away from the prosecution and police. What exactly? The power to question an uninformed, unprotected suspect and gain incriminatory evidence behind the closed door of the police station?
Allowing a suspect access to legal advice does not prevent the police from conducting an interview - it only protects against unfair questioning or interview. There is a real danger here that once the provision of this right is viewed as taking something away from the prosecution, it entitles the prosecution to remove some other existing right or protection - tit for tat. This is a dangerous, unjustified approach.
Most importantly, Scottish ministers have muttered darkly of interference by London in our Scottish criminal justice system. The Scottish judiciary in submissions to the Calman Commission have already complained of such.
The Advocate General has been asked to consider the position and report in a few weeks, absent any proper time for consultation. I fear such misplaced - albeit high-placed - muttering is becoming a full campaign to cut off the route to the Supreme Court created under the Scotland Act.This needs to be strongly resisted.
The Supreme Court decision in Cadder was entirely predictable, if not inevitable, in view of the decisions on the issue by the European Court of Human Rights. What is called into question is not the decision of the Supreme Court, but the earlier decision of seven Scottish judges which failed to enforce the right to legal advice.
The decision of the Scottish Appeal Court in its interpretation of the requirements of the European Convention was simply, in the words of Lord Hope of Craighead, not tenable. The question that is raised here is how did the Scottish judges get it so wrong ?
The answer, in my view, is rooted in a repeated refusal by Scottish judges in criminal matters to engage with and accept the consequences of the application of convention rights. An example of this arose in Cadder where the Scottish Appeal Court refused to entertain an application for leave to appeal to the Supreme Court. Leave was subsequently granted by the Supreme Court itself.
The decision of the Supreme Court concerns the specific issue of convention rights that was raised. As I indicated, the convention is only concerned with issues of procedural fairness - it and the Supreme Court are not concerned with and do not "interfere" with the substantive criminal law in Scotland. The jurisdiction of the Supreme Court is restricted to the application of human rights (raised as devolution issues) under the Scotland Act. Further, in respect of procedure or practice it is only where the act of the Lord Advocate is involved that a devolution issue arises.
Again, an example arises in Cadder itself where a complaint was raised that the judge misdirected the jury on the identification evidence in the trial. This complaint was refused leave and not considered - because it did not properly raise a devolution issue. It is quite wrong to suggest the Supreme Court "interferes" with the jurisdiction of the Scottish Appeal Court in regard to substantive criminal law.
The Justice Secretary also seeks to justify his criticism of "interference" by the Supreme Court, by reference to the proud and "admired" system of criminal justice in Scotland. Unfortunately in recent years, the Scottish criminal justice system, notwithstanding the requirement of corroboration, has lagged behind other comparable jurisdictions in both its development of the criminal law and in respect of procedural rights.
Examples include our failure to introduce proper disclosure of information to the defence; our narrow and restrictive approach to appeals; our failure to develop a proactive judicial role in the protection of the fairness of trials; our failures to provide adequate safeguards regarding identification evidence and, as evidenced in this case, our failure to fully embrace and properly implement convention rights in criminal cases. It is my experience that we are no longer so admired internationally.The Justice Secretary further complains of a "small industry" of lawyers who take cases to London. I must, presumably, declare myself a member of same.
This is because I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here.
In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged.
• Maggie Scott QC is an expert on criminal law and European human rights lawx