Court of political opinion

The independence and integrity of Scots law is something that I, along with the legal profession in Scotland, hold dear. I am also a strong supporter of human rights and believe that the people of Scotland should have effective ways of enforcing their rights under the European Convention.

As a passionate believer in the Scottish justice system, and as a matter of simple practicality and access to justice, I would like to see those rights exercisable first and foremost in the Scottish courts. That is not to say that I take a parochial view of these issues, and I have long accepted the jurisdiction of the European Court of Human Rights in these matters. However, recent cases have demonstrated an increasing, unexpected, and I believe potentially damaging, role for the UK Supreme Court in such cases.

Last week saw the publication of the first report of the review group, chaired by Lord McCluskey, which is examining the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases where human rights issues arise.

This piece of work presents expert views on that relationship and concludes that the existing statutory basis for bringing human rights issues to the Supreme Court is “seriously flawed”. It supports the consensus that the UK Supreme Court plays a much broader role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots law than is the case for the other jurisdictions within the UK. This reinforces my belief that the integrity and independence of our legal system is under threat, and that we must act urgently to address this situation.

At the heart of the problem is the fact that the UK Supreme Court has a wider jurisdiction to hear appeals in Scottish criminal cases than it has in respect of criminal cases from the rest of the UK. Scottish cases can be considered by the court whether or not they are considered to raise a point of general public importance. There seems to be no logical explanation for this, and there is an increasing body of opinion, including Lord McCluskey and his group, calling for change to restore and protect the traditional role of the High Court of Justiciary. It is clear to me that the current situation is untenable.

The other major conclusion of the review group is that the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High Court of Justiciary.

This would help preserve the traditional role of our high court under the current constitutional arrangements by ensuring, as the review group says, “that the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary.”

This would be a major step forward in clarifying the respective roles of the Scottish courts and the UK Supreme Court, and would reverse the worrying trend we have seen in recent years of increasing interference from the Supreme Court.

I believe the conclusions of the review group provide an opportunity for building public and political consensus around these issues and, with the passage of the Scotland Bill at Westminster, we have an opportunity to put right these unintended consequences of the devolution settlement. 

The review group itself underlined this opportunity and proposed amendments to deal with some of the problems. My ministerial colleagues and I will be working with the Westminster government to ensure these matters are on the agenda when the Scotland Bill continues its passage in the autumn.

While the review group confined itself to proposing solutions within the current devolution framework, under independence the remedy would actually be far simpler. As an independent nation within Europe, human rights cases could go from the highest Scottish courts directly to the European Court of Human Rights, as they do in the 47 other jurisdictions governed by the European Convention on Human Rights.

The review group will now consider the views expressed in the Scottish Parliament and through the wider public debate, before publishing a further report in the autumn. Their interim report has brought clarity and light to a complex debate and they should now be given the space to add depth and detail to their important conclusions.

l Kenny MacAskill is Cabinet Secretary for Justice, www.scotland.gov.uk/About/supreme-court-review