So, Mr. Salmond would like to see the removal of the Supreme Court’s power to decide Human Rights issues with regard to the Scottish criminal justice system. Moreover, he has chosen to personalise the issue by attacking Lord Hope, the deputy president of the Supreme Court, and previously lord justice general of Scotland. The situation has become so farcical that the Scottish Government, led by the SNP, are looking at removing funding for the Supreme Court.
Loads of heat and noise there, against a target that, to retain its impartiality, does not involve itself in politics. It’s easy to shoot at something that won’t shoot back, isn’t it?
Anyway, the changes the SNP are proposing will not mean that decisions of the Scottish criminal courts will not be prone to any review — it will mean that, as before the introduction of the Scotland Act and the Human Rights Act, Human Rights challenges to it will have to go to the European Court of Human Rights in Strasbourg rather to the UK Supreme Court. This will of course mean considerable delay compared to now. And on the European Court of Human Rights there are precisely no judges with extensive understanding of the Scottish criminal justice system. On the UK Supreme Court, there are two — Lord Hope and Lord Rodger, who is unfortunately ill at the moment.
What Alex Salmond is doing is transparent — and it has nothing at all to do with the quality of justice in Scotland, or the rest of the UK. Salmond, as leader of the Scottish National Party, has just won a majority in the Scottish Parliament. His party are committed to a referendum on whether Scotland should be independent or not in the latter half of this parliamentary session. It is therefore to his advantage to criticise decisions made by others that affect Scotland — it’s the old “them and us” ploy. While Mr Salmond has always had a tendency to play the “poor downtrodden Scots” card at every opportunity, to personalise the attack against the Scot who, with the other members of the Supreme Court, is the last bastion against Human Rights-based miscarriages of criminal justice in Scotland, is reprehensible.
What we should really be questioning here is the decisions of the High Court of Justiciary in Edinburgh. In both their judgment in Fraser and HMA v McLean (the forerunner to Cadder) — the latter with a bench of no less than seven justices — they have got a point of Human Rights law wrong. What is causing this difficulty in correctly analysing whether aspects of the Scottish criminal justice system is compliant with the Convention on Human Rights?