UKSC: "incubating the disorder, rather than correcting it..."

Here's a thought: Scots Law is not the Volksgeist of the Scottish people. Don't believe me? Hie yourself down to the furthest southern borders of the jurisdiction. Stop at any house, ask its occupants about their conceptions of property ownership, their understanding of their housing tenure or how they conceive of their "rights" to track across their neighbour's garden to get access to their property. Step south, and repeat the process. I dare say, you would find a good many common social conceptions of property in both places, yet the elementary concepts and governing ideas of English property law, and our Roman-Scots are profoundly different. Similar tales can be told across law's branches. In England, you can cheerfully disinherit your children in your will (albeit, as I understand, with potential for the disappointed weans to apply to the court for discretionary relief). In Scotland, by contrast, children may always claim their legitim - their legal rights - to a portion of their parents' moveable goods, however forlorn their wicked parents might hope to abandon them. (For those of you keen to screw over your issue, I can only suggest that you invest heavily in heritable property. That way, you can leave your vast tracks of land to whoever you like, minimise your moveable estate - and thereby, achieve your Dickensian ends - from beyond the grave).

My point is not that law bears no relation to our dominant public ideas, the ruling spirit and understandings of our time. Clearly that would be a claim too far. However, we should be cautious about adopting the simple idea that law as such simply reflects social values of a given community.  Some areas of law may strive to do so. We may take up reform of a particular branch of law as a political project, justified in terms of making law a social mirror, however imperfect the reflections it returns. Ask your average Scot to describe the distinctive elements of Scots law - and beyond the not proven verdict - most are likely to struggle to outline even the most basic differences. I've written about this limited popular consciousness, and its some of its drivers before. Even in those legal areas most over-exposed to the public consciousness - criminal trials - I find many people are surprised to discover that Scots juries consist of fifteen folk compared to the English twelve, and that their voting rules also differ substantially. And that, before you embark on the Latin, 6th Century Byzantine codification, its rediscovery and revival, the reception of Roman Law into Scotland and the labours of the immortal Stair.

That being so, furious advocacy of the rugged independence of the Scottish legal system is rather curious. Traditionally given as one of the great pillars which sustained Scottish distinctiveness after 1707, it just isn't plausible to explain the feeling around Scots juridical independence in terms of a commitment to its orderly law of property, its principled division of personal and real rights, or a preference for a general conception delict rather than the profusion of specific English torts. I think Alex Massie captures something important, when he stresses issues of emotion and esteem in generating the late reaction against a court, sitting in London, with a majority of English judges. To put it another way, since the defence of Scottish legal distinctiveness isn't premised on an understanding of what is distinct, we must find other explanations for the potency of the reactions against the UK Supreme Court's decisions in Cadder and Fraser, the latter lately discussed here.

Perhaps one of the most irritating Eckisms is his sometime tendency to invoke sketchy wikilore with great sententiousness and importance, as if he had revealed some profoundly enlightened and enlightening perspective on a topic which otherwise had not occurred to his audience. I can recognise a similar tendency in myself at times - taking pleasure in the telling phrase, whether or not the thought encapsulated is particularly significant, interesting or illuminating. We were treated to an example in this genre recently on the UK Supreme Court on Newsnicht last week, in which Salmond defended the idea that Scots, disappointed in their human rights claims before Scots Courts, might lodge an application with the European Court of Human Rights in Strasbourg, under the European Convention. This is a perfectly respectable position, and is what happens elsewhere in the Council of Europe, when the highest courts in the land rebuff the claims of their citizens, and domestic remedies are exhausted. There are some important facts about the European Court which we ought to bear in mind. Firstly, only about 3 - 5% of applications lodged with the institution (the process isn't an "appeal", in the ordinary sense) generate a judgment of the Court. The rest are almost all summarily declared inadmissible, without reasons being provided, without a hearing, without being communicated to the government complained against, and hence, are not subject to examination by adversarial proceedings. To buttress this proposition, and stave off the critique which notes that two eminent Scotch judges sit on the UK Supreme Court, Salmond treated us to this basically silly saw...

"The idea that you need a court with a majority of judges from England to tell us how to implement human rights in Scotland, I think is an extraordinary way for - or belief - for any Scots lawyer to have. I mean, after all, the European Convention on Human Rights was written by a Scot: David Maxwell Fyfe..."

To recap, David Maxwell Fyfe was born in Edinburgh in 1900, educated at George Watsons - before departing the country for an education in the Classics at Balliol College in the University of Oxford, later being called to the English Bar. He later served as a prosecutor at the Nuremberg trials, enjoyed a political career in the Conservative Party, subsequently being appointed Home Secretary and, between 1954 and 1962, Lord Chancellor.  Fyfe, in short, is a terrible model to press into service in the defence of Scots law. After all, Fyfe himself has no background in it. He may not have been a lawyer from England, but he was decidedly an English lawyer. I cannot for the life of me, without straying into iffy ethnic nonsense, see why it should terrifically interest us that the bairn that would become the rather reactionary Lord Chancellor Fyfe happened to burst from his mammy's womb near the shores of the Firth of Forth. Similarly, as with all complex treaties addressing novel concerns and politically sensitive topics, it is a piece of nonsense to imagine a hardy Scotsman sitting down and dictating the document that would become the finalised draft of the European Convention. Its travaux préparatoires are long and extended for a reason. Oh. And a good portion of its text is nicked from the Universal Declaration of Human Rights (1948) in any case. With Salmond talking such rot, how to navigate our way through the controversy? How to distinguish the arguments different folk are making? I found it helpful to try separate out their different elements and threads. Doing so goes a long way to making a bit clearer what the real bases of controversy really are...

(1) Are you (a) a Scottish Nationalist or are you (b) committed to the Union?
(2) Do you (a) support the idea of Scots law being maintained as a distinct jurisdiction or (b) not give a fig?
(3) Do you think the High Court of Justiciary is (a) performing up to par or (b) failing to take seriously human rights issues raised in criminal matters?
(4) If the answer to question 3 is "failing to take seriously human rights issues", what solution do you envisage?

The curiosity is that a number of cross-cutting combinations of opinion are possible here. First, take what appears to be Salmond's position. He is a Nationalist (1a); wants distinct jurisdiction maintained (2a); and apparently believes Justiciary made the right decision in Cadder and Fraser (3a). We might envisage a slightly different combination from a conservative Scots jurist - committed to keeping the Union (1b) but also wishing to defend the distinctiveness of Scots Law from encroachment by the UK Supreme Court (2a). A number of pro-Labour folk combine in a slight different way. Unionists (1b), they don't mind a bit of encroachment across jurisdictions (2b); regard Justiciary's decisions in recent criminal cases as unjust, uphold the Supreme Court's human rights based analysis (3b); and critically, prescribe the UK Supreme Court's continued jurisdiction in human rights cases, as a palliative to the indifference of Scottish judges, who are left to stew in Edinburgh to be gleefully overruled by more liberal spirits in London. A number of prominent lawyers arguably share this third combination of views, which I have heard expressed on a number of occasions.

My own position differs from them, and from Salmond - and is I think, perhaps the most uncomfortable combination of the options afforded above. I'm a nationalist (1a), in favour of a distinct Scots jurisdiction, in the Union or out of it (2a). However, unlike Salmond, I have substantial concerns about the High Court of Justiciary's application of human rights norms. To rebuff Nat Fraser's appeal was, in my view, an unconscionable decision of the Court of Criminal Appeal (3b). However, unlike prominent Unionist lawyers, I do not accept that the solution to the failure of Scots judiciary to take serious is simply to give up hope in powers of persuasion - and their reform - and stave off injustice by maintaining a more benevolent colonial appeal structure, to temper the College of Justice's straightened justice. Robert Black QC articulates a similar point of view...

"What principally concerns me about the present brouhaha over the role of the UK Supreme Court is the failure to address the fundamental question about the performance of the Scottish criminal justice system in relation to human rights issues. Few, if any, Scots lawyers would say that the Supreme Court was wrong in its interpretation and application to Scottish practice of the European Convention on Human Rights in the Cadder and Fraser cases. There can be little, if any, doubt that the European Court of Human Rights in Strasbourg would have reached the same conclusions. Our first concern should be about rectifying the deficiencies in the Scottish criminal justice system, not shooting whatever messenger has the temerity to point them out."

This is easier said than done, certainly.  However, isn't it intolerable to imply, as some proponents of the UK Supreme Court's jurisdiction seem to imply, that the Scottish judiciary's attitudes towards human rights claims are beyond redemption, their adjudication beyond rehabilitation? Can't we struggle to address our own problems, without giving in to the lazy comfort of sobbing into the shoulder of a benevolently patriarchal judicial regime, which occasionally exerts its muscles firmly but gently to correct Justiciary's want of sympathy? One of the animating purposes of setting up this blog, at least initially, was to cast a critical eye over certain aspects of Scots Law and encourage its inclusion in our political debates. In order to entertain that discourse, to foster that public consciousness - we have to work up a sense of Scottish courts as part of our political architecture, rather than setting them up at a distance in sober neo-classical shape, full of the shuffling of feet and the tired rasp of paper on paper, as tedious and irrelevant matters are quietly resolved. As Robert Black argues, relentless focus on the jurisdiction of the UK Supreme Court, and envisaging only solutions which rely on that jurisdiction, obscures rather than illuminates the real inadequacies of Scottish justice - deferring a needful analysis of its structures and spirits, perpetuating rather than amending the inadequacies we saw in the Fraser judgment. While the jurisdiction of the Supreme Court strikes many as a cure to these ills, there is a real danger that its effect will be merely palliative, incubating the disorder, rather than correcting it.