Analysis: Muddying the waters of an already complicated issue

TO BE fair, there is an issue to be discussed about the evolving relationship between the Scottish criminal jurisdiction and the UK Supreme Court, but to conduct it in the style of a late-night phone-in doesn't lend clarity to the debate.

It was diverting that, in the same interview in which he posed the choice as between "Scots law or Hope's law", the First Minister asserted his support for, and Scotland's umbilical connection with, the European Convention of Human Rights by reminding the audience that it was a Scot, Sir David Maxwell Fyfe, who "wrote it". Well, Sir David convened the committee that drafted it in 1950 and certainly pressed for its adoption by the Council of Europe. It is less clear what he would have made of it in practice.

Though a Scot, Sir David never actually practised law in Scotland.

Sir David would probably have regarded most of the inclusive assumptions of the SNP in particular, and the Scottish Parliament in general, as "extreme".

One of the challenges we face in this rolling-news, soundbitten stage of democracy is how to develop a political discourse that doesn't set out to win arguments by discrediting the good faith of those who do their job to the best of their ability but reach an inconvenient conclusion.

While the demonisation of Lord Hope and the UK Supreme Court helps no-one, the alternative that has been proposed, of cutting London out of the action and appealing straight to the European Court of Human Rights in Strasbourg, raises misgivings of its own.

The concerns are not based on the expense or delay or the complete absence on it of judges from the Scottish jurisdiction but the waywardness of the court itself.

While we in the UK jurisdictions are used to nominating judges to superior courts based on their suitability for the job, that is not an approach shared throughout the member states. For some judges, it is political reward or to get them out of the way.

That may underlie not only the inconsistency in Strasbourg rulings (including several on the right of prisoners to vote) but also its general indifference to the traditions and unique practices in smaller jurisdictions.

Lord McCluskey's expert group may come up with proposals to resolve the actual problem that has arisen, but I doubt if booking a through train to Strasbourg will be among them.