Independent law

Christine O’Neill (Friends of The Scotsman, 9 December) provided a detailed analysis of the legal changes that would follow a Yes vote in the independence referendum.

During the “transitional” period between a Yes vote and “actual independence”, the “Scottish Parliament would create a Supreme Court for Scotland (no more than the removal of the UK Supreme Court’s jurisdiction and the transfer of its power to the existing Inner House of the Court of Session and the High Court of Justiciary).

“The proposal affirms the crucial importance of a superior court to uphold the rule of law – something obviously critical to parties wishing to protect rights and property in a new state”.

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And therein lies the problem. To date, the reasoning deployed by judges in Scotland’s higher courts in high profile cases has been exposed as fundamentally deficient – to the detriment of the “rule of law” and the need to “protect rights and property”.

The Peter Cadder case (there are others) illustrates the point.

A coterie of Scotland’s most senior judges perused the legal arguments in support of Cadder’s appeal to the effect that his human rights had been violated by the failure of the state to provide access to a lawyer, subsequent to his arrest and before he was questioned and interrogated.

Despite the fact that human rights law and the decisions that derive from it necessarily impinge on Scots law (regarding access to a lawyer), the judges, in what appeared to be a descent into the hypnotic world of reassuring insularity, dismissed Cadder’s appeal.

But for the subsequent intervention of the Supreme Court, detained suspects in Scotland would still be interviewed, questioned and interrogated without the benefit of a lawyer – as required by European law.

Independence will not immediately (if ever), extinguish the apparent propensity of Scotland’s judges to allow haughty insularity to triumph over the art of judicial reasoning – in the context of how international law impinges on Scots law.

Consequently, the laity has some grounds for contending that the “rule of law” and the “protection of their rights” will not always prevail when the Supreme Court ceases to have jurisdiction in Scotland.

Thomas Crooks

Dundas Street