Lord McCluskey backs new control on Supreme Court appeals

SCOTTISH judges will be able to block appeals going to the Sup-reme Court under radical proposals put forward by some the country's leading legal minds.

The recommendation by an expert group, led by Lord McCluskey, would put the High Court in Scotland on a par with its English cousin - meaning it would have to grant a "certificate" before cases could be referred to London.

Such a move would block the route used by Peter Cadder and Nat Fraser, who appealed their convictions on human rights grounds, and now expected to be

taken by Luke Mitchell, the killer of teenager Jodi Jones.

However, Alex Salmond's own working group has rejected the First Minister's bid to cut the Supreme Court out of Scots law entirely and refer human rights appeals to Strasbourg instead.

The working group said: "We do not suggest that the jurisdiction of the Supreme Court should be ended."

It argues that if the European Court of Human Rights in Strasbourg is used instead "there is the potential for further uncertainty and delay", while also stressing the need for "coherence" in the way human rights laws are applied both north and south of the Border.

The interim report even goes as far as to recommend the wording that should be inserted into the Scotland Bill.

It says appeals should only go from Scottish courts to the Supreme Court if it raises a point of "general public importance".

This, it argues, would lead to the Supreme Court making judgments on broad points of law - as it did with Cadder and access to lawyers during police interview - rather than focusing on an individual case that has no repercussions for other cases.

The role of the Supreme Court in Scots law has become a matter of increasingly heated debate, particularly after it quashed the conviction of Nat Fraser - who now faces a retrial - for the murder of his wife Arlene.

• Analysis: The important point is what is the future of human rights?

• Legal world pays tribute to 'brilliant' judge Lord Rodger

The First Minister and his Justice Secretary Kenny MacAskill, who accused the Supreme Court of "ambulance-chasing", have been broadly criticised by the legal profession for their caustic language.

The working group of Lord McCluskey, Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker was formed by the Scottish Government to try and achieve consensus.

However, there is concern that the High Court will block cases that should be referred.

In a submission to the Advocate General for Scotland, Lord Wallace, the Faculty of Advocates said: "The consultation paper does not make it clear whether the intended effect of the proposed certification is to circumscribe the jurisdiction of the Supreme Court to determine the case it hears.

"In other words, whether the intended effect is to prevent the Supreme Court from hearing a case in the absence of such certification by the High Court."

It added: "The Faculty is strongly of the view that the proposed changes to the Scotland Act should not alter the present arrangement... whereby the Supreme Court remains the ultimate arbiter of whether it hears a case."

Earlier this month, the Faculty released a joint statement with Law Society of Scotland criticising Mr Salmond.

Both organisations have defended the role of the Supreme Court in the face of attacks from the Scottish Government.

Christine O'Neill, convener of the Law Society of Scotland's constitutional law committee, said: "We are considering the interim report published by the review group and will endeavour to meet with Lord McCluskey over the summer months to discuss the review.

"The society's consistent position has been that the UK Supreme Court should play an important role in constitutional and human rights issues affecting Scotland."

Opposition parties last night described the interim report as a snub to Mr Salmond.

Johann Lamont, Scottish Labour's justice spokeswoman, said: "In sharp contrast to the comments of Alex Salmond and Kenny MacAskill on this topic that have been so roundly criticised by the legal profession, this report makes crystal clear that the jurisdiction of the Supreme Court should not be ended."Alison McInnes, Scottish Liberal Democrat justice spokeswoman, said: "The McCluskey review group says the UK Supreme Court should still have a role in Scottish human rights cases. This should see an end to the First Minister's tawdry name-calling on the UK Supreme Court."

However, Mr Salmond welcomed the report.

"There is now a 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 - with serious implications for the certainty and integrity of our distinct legal system," he said.

A spokesman for the First Minister declined to say whether the Scottish Government still hoped to see appeals heard in Strasbourg rather than London, saying the government would "take things a step at a time".

Paul McBride QC, who has backed changes to the relationship between Scots law and the Supreme Court, said the interim report was a "sensible view to come to".

However, it will be up to Westminster to decide if Lord McCluskey's final report - expected before the end of the year - will feed into the Scotland Bill.

A spokesperson for the Advocate General said: "It is premature to offer any detailed response at this stage when Lord McCluskey's final report will not be produced until later this year."