John McTernan's "trumped up posturing..."

Oor Fi Hyslop came in for a bit of a drubbing on this blog on Tuesday. It's time, in the interests of balance, to send the rhetorical cudgels swinging in the other direction. As those stout souls who worked their way through my post on the topic will know, the stramash over the UK Supreme Court's jurisdiction over Scots criminal courts is a bit more complex than it was being presented earlier in the week. Such a jurisdiction is not new and has existed for some time in the fields of devolved competence and European human rights law. Writing on Tuesday, I emphasised the status quo and what these proposals are likely to change in order to correct the impression that Jim Wallace's proposals represent an outrageous novelty. They don't. However, that is not to say that they are unproblematic, desirable and particularly apolitical.

I'm aware that the Mephistophelean John McTernan was opining vigorously on the topic in the Scotsman earlier in the week. Not being a subscriber, I could but peep forlornly over the paywall, but his title - "Trumped-up, anti-British posturing" - hardly left one in much doubt about the tenor of his contribution. The value of such articles appears to diminish over time, however, for it has now been made available in full online to penny-pinching surfers such as myself.  For all of his snidey-sniping, unfortunately brave John allowed himself a factual slip or three. He said:

"There is, by law, a right to appeal if you believe that the Lord Advocate has not respected the HRA. The Scotland Act, when drafted, was based on a view that such appeals would be rare and they were treated as "devolution issues". The route for those to be resolved is an appeal to the Joint Committee of the Privy Council - an onerous and bureaucratic route, but one that has been used far more often than ever anticipated."

While McTernan is correct that there is such a right of appeal under the Human Rights Act 1998, this appeal is, as I noted on Tuesday, limited to the High Court of Justiciary. McTernan conflates this with the quite separate legal requirements to observe the European Convention which are set out in the Scotland Act 1998. Oh, and it is the Judicial Committee of the Privy Council, not the Joint Committee. And the jurisdiction he is referring to was transferred to the UK Supreme Court by Schedule 9 Part 2 of the Constitutional Reform Act of 2005, passed by the Labour Government McTernan served.  Later in the article, he suggests that an appeal would lie to the European Court of Justice - which it won't, since the ECJ is a European Union judicial authority, distinct from the Council of Europe and its European Court of Human Rights. (It does make one wonder, does nobody actually read these opining pieces to see if they contain any glaring inaccuracies? I have every sympathy with your average punter who muddles their Luxembourg and Strasbourg, EU and Council of Europe - but if "expert commentary" of McTernan's sort is to be foisted upon us, wouldn't it be splendid if it lived up to minimal standards of accuracy?) Still, what are a few  factual infelicities between friends? That said, the clumsy, misleading way Hyslop and others in the SNP handled the issue frankly invited these criticisms - and as I feared - helped to obscure rather than illuminate the implicit Unionist politics of this reform. It may not be an innovation, but the opportunity is being seized to buttresses the jurisdiction.

This is a dull and complicated issue you cannot be expected to take an interest in is a well-kent de-politicisation strategy. Just a technical tidy up is itself a way of framing the problematic field, of wrestling control of the vital question: what is the issue here? As ever, there is a dagger under McTernan's tongue and his piece is comically guilty-minded, seeing everywhere evidence of his own sins. This is a plain, open-handed, modest reform he suggests - simple, sans ideological content. Against this humble, workmanlike figure, McTernan sets up the devilish scoundrel Nat, whose agitation has a hidden significance which we are lucky enough to have him around to point out to us. There is a "pattern" at work here, says perspicuous John, contending that Nationalists are making illegitimate political mischief over the issue, simply because...

"The Supreme Court is a threat not because it is an outrage against Scots law, but because it is a new British institution - and if it is successful and provides Scots access to justice in cases against Scottish ministers, it will further cement Scotland into the UK"

Everyone and his dug knows that the SNP might be expected to favour the independence of Scottish institutions, and hold in antipathy those sites which tend formally to reinforce British integration. But you'll notice the not-so-subtle movement, that sees pro-Nationalist perspectives written off as partisan and sleekit-political, while the attempt to confirm the jurisdiction of the UK Supreme Court is benign, drab, without politics. McTernan has the Nationalists pick a fight, subtly kicking the Unionist gauntlet flung down by Jim Wallace from view. Let's not forget, in legislature terms, the UK Supreme Court's jurisdiction over Scots criminal courts dates from devolution, no earlier. From 1707 until the 1998 Act came into force, the High Court of Justiciary was the Scots petitioner's final domestic stop in criminal matters. It is hardly outrageous, therefore, to suggest that one should return to this position. A similar point could be made about the Calman Commission's remit, just another attempt to cast a particular problem within a Unionistic frame of reference and depoliticise what are essentially political choices.  As I see it, this is not a question of politics vs the apolitical "right" answer. McTernan's message here is a familiar one, and it is nonsense. You have your ideology if you like, I'm just a plain-spoken pragmatist. Our political judgement about the independence of Scots legal institutions must frame the whole assessment of what constitutes the right approach to take. Although I agree with McTernan  that the SNP mishandled the first response to this, his idea that this is not a significant issue backed up by significant and legitimate disagreement on matters constitutional is simply ridiculous. He writes:

"This is a limited right of appeal from the High Court (sitting as a criminal appeal court) to the Supreme Court in cases where it is alleged the Lord Advocate has acted incompatibly with the ECHR. Not such a shocker. It brings Scotland into line with England, Wales and Northern Ireland."

Bringing into line is a pat phrase of technocratic reform. I was interested to know precisely what line McTernan thinks he perceives, because it was lost on the Scottish Law Commission, who submitted this spicy response to the Advocate-General for Scotland, on the utility of the proposed changes. Hardly a band of stubborn political Nationalists, the SLC emphasised that the jurisdictional independence of Scots criminal law is a feature, not a bug:

47. Scots criminal law is a jurisdiction which is not only constitutionally separate from English criminal law. Many of its practices and procedures differ substantially from those of English law. There is no more reason why a particular feature of Scots criminal law need be the same as any feature of English criminal law in order to comply with the requirements of the Convention as there is that any feature of either system should be the same as a feature of Russian law to achieve that purpose. As Hume said –

"In short, the whole train of proceedings in this or any other country, must be taken into consideration, of judging of any part. And if upon a complex view of the entire process, the prisoner appears to have a fair and equitable trial, in which innocence runs no risk of being ensnared or surprised, it is all that a reasonable man can wish for, and all perhaps that is attainable to human wisdom."

48. The European Court of Human Rights has recognised the truth of this admirable statement, and the inadvisability of attempting to introduce a “one size fits all” approach to disparate systems of criminal justice. In Doorson v Netherlands the Court observed:

"67. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."

49. There is simply no constitutional requirement for there to be a “consistent and coherent view” across the United Kingdom on the meaning of Convention rights in relation to criminal proceedings. If there were such a requirement, the constitutional settlement does not provide a structure to achieve it. As the paper points out, no such jurisdiction has been created in relation to criminal proceedings in Wales or Northern Ireland. In relation to Scotland and England, we would maintain that there is no reason why the High Court of Justiciary should not be able to reach a different view as to whether or not a particular feature of Scots criminal law is compatible or incompatible with the Convention rights from that which the Supreme Court may reach on a provision of English criminal law.

They conclude the section:

53.  ...  the creation of a devolution jurisdiction in relation to Scots criminal law has accentuated the artificiality of the practical arrangements in the Supreme Court.  It cannot be acceptable for courts which apparently require to go deeply into the detailed historical basis for remedies to do so where only one or at most two of the judges are familiar with the legal system concerned.   It is an excellent indication of the difference between the European Court of Human Rights, which of course applies common principles to a wide range of jurisdictions, without a detailed knowledge of any of them, and the Supreme Court, which, at least in relation to Scottish criminal matters, finds it impossible to attain a similar detachment.

For my part, I support ending Scottish appeals to London on all fronts, criminal and civil, primarily on nationalist political grounds. I have legal friends who support the same end, but from a pro-Union perspective. Their views are informed by the reasons of the jurisdictional eccentricity of Scots Law within the legally pluralistic United Kingdom, set out so clearly by the SLC. For me those concerns are secondary, but compelling. Others disagree, supporting such appeals because of the benefit they perceive to derive from the jurisdiction, its utility from the Unionist perspective, or some combination of the two. Discussing these issues, the important issue is not to let sly devils like McTernan hoodwink us to the immanent importance of political choices and frames, whatever one's view.

Previously on this topic, with much more detail about what Jim Wallace is proposing...