Leader: McCluskey throws Salmond a legal bone of contention

WITH the row still reverberating in Scotland over an unseemly rush to legislation, the speedy first report of Lord McCluskey's Review Group on the role of the UK Supreme Court and its interaction with Scots law may seem to be tempting fate.

There was no time to summon witnesses or question those who submitted evidence. But in its grasp of the core issues and in its proposals for reform, it has brought shrewd judgment to bear. And the judgment is Solomonesque. While it leans strongly to the First Minister's critique of the place of the Supreme Court in Scots law, in recognising the role of that court in human rights matters, it denies him outright victory. He will enjoy gnawing at the meat, but may choke on the bone.

The group's key finding is that the existing statutory basis for bringing human rights issues to the Supreme Court is "seriously flawed". It says that the widening of jurisdiction as exercised by the Supreme Court "had surprised everyone and presented real problems". Hence the uproar over the Cadder and Nat Fraser interventions.

Two issues stood out from the start. The first was how Scotland's appeal court - the High Court of Justiciary - has, as the report puts it, "found itself placed under a broader and... more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases." The second was how the demarcation between Scotland's appeals court and the UK Supreme Court became so blurred, with the latter acting as if it was the former.

The remedy McCluskey proposes for the first has been advanced both in the editorial columns of The Scotsman and elsewhere. This is that our High Court is placed on an equal footing with its counterparts elsewhere in the UK, and that a filter for appeals be introduced. Under this, reference to the UK Supreme Court would proceed only if the High Court has granted a certificate that the case raises a point of general public importance.

His second proposal is that it should be made clear that the jurisdiction of the Supreme Court extends to identifying the law that the criminal courts have to apply. It should be left to the High Court to apply the law. This would avoid the confusing and dysfunctional overlap of competencies.

The report recognises the role of the UK Supreme Court. As the UK is a member of the Council of Europe and signatory to the European Convention of Human Rights we have an obligation to ensure we adopt a coherent approach across the UK to its basic provisions. Lord McCluskey has deftly turned that point to Scotland's advantage by advocating a similar coherence of treatment of the different systems of jurisprudence within the UK. This point may not please the fundamentalists. But the report overall lays the foundations for wider discussion and a practical and insightful solution to the problems that have arisen.