8 June 2011

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.


  1. Thanks for this; nicely argued.

  2. Thank you from me, too.

    You correctly interpret my views. In an ideal world, I would prefer there to be no Scottish recourse, civil or criminal, to a UK Supreme Court. But, at present, on human rights issues, Scottish prosecutors and courts are getting it wrong far too often for comfort. How this is to be remedied, I do not know (but having career Crown Office civil servants as our law officers certainly doesn't help).

    And it is tragic that two of the best Scottish judges of their generation (Lords Hope and Rodger) have to be transported to London (where most of theit time is spent hearing English appeals) when they are so badly needed in Scotland.

  3. Scottish republic8 June 2011 at 16:32

    It's arguable that without the Scottish institutions that remained intact, after the Treaty of Union, there would be no devolved Scotland.

    The fact that we still had not just the vestiges of these institutions but the actual institutions intact gives the idea of a Scottish political nation validity. The problem Wales faces is that historic institutions of nationhood never existed. The Welsh are currently creating these and the more they create, the more national identity they grasp for real.

    We were left with a separate : Scots Law, Scottish education and Scottish church and Scottish banking system.

    If one had a parliament, a miltary and a border on top of those, one would be a nation.

    It's clear that devolution of powers to a region and devolution of powers back to a nationa may well produce a different result.

    In the Scottish case, that result is a greater sense of national identity separate from a British identity (in fact polls show this); in a region a greater sense of regional identity within a nation.

    The federal argument is applicable to both as either a compromise to sovereignty or greater aknowledgemnet of regional importance (both cases being half-way houses).

    So in fact it's not a specious confrontation-seeking argument but it is a very real and important defense to make of one of the few institutions that helped preserve the actual nation of the Scots.

  4. First, with regard to your passing observation that 'many people are surprised to discover that Scots juries consist of 15 folk' may I recall that when the then new Falkirk Sheriff Court was built in 1991/2 the 2 jury courts were both lavishly equipped with jury boxes for 12 ladies and gentlemen !!

    When the error was discovered, an additional 3 positions had to be somehow shoe-horned into limited space, resulting in 3 of the ladies and gentlemen henceforth being located more nearly in the corridor than in the jurisprudential forum.

    Second - (and I make no pretence that this is a deeply considered opinion - it's nothing more than a gut reaction) - There is clearly something very wrong in the Nat Fraser case, and the intervention of the Supreme Court, though highly unwelcome, seems potentially to be saving our own legal system from a festering miscarriage of justice. However, I could not stand the supercilious and po-faced way that My Lords Hope and Rodger casually put the boot into the Scottish Appeal Court in the Cadder case - they both served periods as Lord Justice General in the High Court of Justiciary and, in that capacity, they both had ample opportunity, for example, to find interviews in detention without access to a solicitor as being inherently unfair.

    Not only did neither do that, they did the reverse, and ironically judgements of both were quoted by the High Court in support of its decision in HMA v McLean (subsequently ripped apart by Hope and Rodger in Cadder's case).

    I could have been a Judge, but I never had the Latin for the judgin'

  5. Just thinking, in t creast of the "dUK" Court, is the English rose above the Thistle and the Forget-me-not. So, why is there no Shamrock or Leek (I know the obvious response to that)

    Subliminal propaganda???

    Answers on a €5 note to Milord, Care of the H of Lards

  6. Lord Snooty,

    Just to dispatch this "Subliminal propaganda" conspiracy theory quickly so as to avoid it distracting from a worthy debate I'll explain that in fact the leek does appear on the UKSC's emblem - it's right there between the thistle and the rose.

    The shamrock does not appear because, as a symbol, it is viewed as divisive. Increasingly, older symbols - including the shamrock, harp and crown are replaced with the inclusive symbol: the flax flower; which you mistook for a forget-me-not. The Northern Ireland Assembly itself uses this symbol in its emblem.

    You can find more information about the design of the UKSC's emblem - in particular the fact that it was designed by the Herald Painter of that most Scottish of institutions - the Court of the Lord Lyon - in the decidedly un-subliminal, in fact the clearly visible and identifiable location, the UKSC website.

    To everyone else, I know Lord Snooty is likely a troll but I thought it worth replying just in case anyone thought there could be the slightest merit to his theory... Cabinet Secretaries, that includes you!

  7. I too am 1(a), 2(a) and 3(b). Moreover I would carry Professor Black's apposite views about promotions of Crown Office personnel to the posts of Lord Advocate and Solicitor General further and observe that politicians, however sane they might have been in opposition, get captured by the Crown Office when in government. However, nil desperandum. In fact Mr Fraser would not have been left without a remedy if the UK Supreme Court were shorn of its novel and usurped jurisdiction over Scottish criminal cases. The suggestion that has appeared in some quarters of the UK Supreme Court being an alternative to Strasbourg is nonsense: it's an addition, a fifth wheel. There are plenty of cases go direct from Scotland to Strasbourg and, with all due respect LPW, some of them do get heard there. Mr Salmond quoted the case of Thomas Judge this week, which went straight from the HCJ to the ECtHR. Mr Fraser could have done that instead of going to the UK Supreme Court; and if the UK Supreme Court had made the wrong decision, he could still have gone there. Furthermore, a remedy Mr Fraser could have exercised but didn't, as far as I know, was recourse to the Scottish Criminal Cases Review Commission. Admittedly it's not exactly swift; but legal mora are practically universal.
    This is not to say that the High Court of Justiciary is perfect. It very clearly isn't. One might have hoped it had learned something but its further adjournment of Mr Fraser's case today looks like an unworthy piece of pettiness.

  8. I have no legal bones in my body (whatever that might mean), so what I'm not clear about is this -
    If the Scottish legal systems implementation of whatever it is that the EHCR demands of us is falling short, and the Scottish legal system has neither defended it's failure to do so nor mended its ways; why are we not being 'told so' by the EHCR, whose domain this is? Why instead is it being done through a legal vehicle which seems to be laden with constitutional FUD?

    Is there any answer as to why the Scottish legal system can't interact directly with the EHCR on this? The UK Supreme Court seems to be a shiv slotted in as an extra step to my naive eye, muddying both legal and constitutional waters.

    Hope that rambling makes some sort of sense.

    People with no legal nous are interested in this, particularly given its apparent entanglement with constitutional affairs.

    Honest question, honest.

  9. '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.

    ...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.'

    Lallans - as a non-legal person, would you recommend a book explaining all of the above that I don't understand?

  10. RobertArne, James,

    Always glad to oblige.

    Robert Black,

    Glad that I accurately caught your drift. I'm conscious, however, at the level of practice, that I still leave a particular conundrum outstanding: how is Justiciary's approach to be altered? Is there an argument that the UKSC link should be retained as the only effective stop-gap in the interim? If we do away with such a jurisdiction, then what? I don't have remotely satisfactory answers to that.

    Scottish Republic,

    I wouldn't disagree with that. Scots law's institutional expressions and their distinct social life are clearly important in sustaining an idea of Union as opposed to single united "UK" jurisdiction.


    What a splendid piece of incompetence! You'd have thought someone might have noticed before the damn things were installed. No doubt it was the case of "jury" being a false friend. Interesting point on Cadder. In fairness, the Salduz judgment of the European Court was delivered on the 27th November 2008, outside both of their terms as Lord Justice General.

    Lord Snooty,

    I believe you may just have mistaken the leek for the sprouting stalk of the rose. According to the court, the knotted symbol is intended to represent the commingling roots of a rose (England), a thistle (Scotia), Northern Irish flax - and finally yon leafty whatnot on the left hand side is a leek, for our Welsh friends.


    The Court's symbol is, for all that, a rather interesting object, with clear political content.

    Am Firinn,

    Just a couple of points. Firstly, I wasn't trying to imply that the European Court doesn't hear cases from Scotland. Mostly, I was just trying to emphasise that certain assumptions about how the institution operates aren't really on the money. On your second point, strictly speaking, the European Court cannot hear a case until domestic remedies have been exhausted. You need not pursue "extraordinary remedies", but my guess is, if Nat Fraser had not appealed his devolution minute to the UK Supreme Court, his Strasbourg case would be at risk of being declared inadmissible by the ECtHR.


    Perhaps the crucial detail is that governments do not have direct access to the European Court of Human Rights. This is one of the reasons why the language of "appeal" is problematic. It implies both sides can take their argument to Strasbourg, if they are defeated in domestic proceedings. Not so. Only aggrieved individuals can apply to the European Court, if domestic authorities disappoint them. Thus, in the Nat Fraser case, the Crown has nowhere to go - and why would Fraser take a case to Strasbourg, when he won domestically? That is one, very important explanation for the conundrum we find ourselves in at present.


    I'm glad that particular purple passage was obscure as it was intended to be - bearing out my point, you might think! I don't immediately know a decent Introduction to Scots Law type of tome. I shall look into it, ask some cronies, and let you know.

  11. I stand corrected a propos the flowers but their position is subliminal?

  12. Surely the nub of the question from a lay point of view, is why the appeal process in Scotland is either too loath to question the original courts findings, even in the light of new 'evidence' or is limited by process to restricting the grounds for appeal to matters presented at the original trial.

    Both factors seem to have played a role in the appeals of Megrahi and Fraser.

    Then there is the dubious practice of legal systems to 'offer' victims of doubtful verdicts their freedom provided they admit by inference of dropping any appeal, their acceptance of the original verdict.

    While this wouldn't apply to the Fraser case it could to Megrahi's and it strikes as a system self protecting.

  13. LPW

    I'm not sure that Alex 'blood of our blood, bone of our bone' Salmond is as averse to 'iffy ethnic nonsense' as you are. Such views have a long tradition in Scottish nationalist politics, and Salmond does occasionally let his mouth run away from him and blurt out his true feelings, comments that he would never commit to print. Remember the 'we didn't mind the economic side so much' gaffe?

  14. LPW

    I appreciate that both Lords Rodger and Hope were long gone to London by the time of the Salduz case. However, my point is this -

    In Cadder's case the Justiciary Court in Edinburgh were effectively saying that Scottish domestic law was different from, but no less fair than, the domestic law of other European jurisdictions.

    And that is precisely the position previously adopted (or at least tacitly agreed to) by both Lords Rodger and Hope when they were the senior Justiciary judges in Edinburgh.

    Had it been screamingly obvious that the domestic Scottish law was not meeting the standards of fairness required by the ECHR then Rodger and Hope had plenty opportunities to say so when they were in Edinburgh - that they didn't say so suggests that it wasn't screamingly obvious.

    I am not learned enough to pass any real opinion on the legal merits of the Supreme Court's decision in Cadder, but I would have rather wished the Scottish judges in that court had given support to the Scottish court, if only because complete homogenisation of criminal procedures across Europe is, in my mind, both impossible and undesirable.

    One effect of Cadder was to remove certainty and introduce uncertainty and some panic, as cases were dropped and emergency legislation was enacted. Another effect was to make Scotland peculiar in having BOTH a requirement that the detainee be cautioned (and thus have an unqualified right to silence) AND have the right to legal representation at interview.

    In one fell swoop Scotland gained the most unproductive police interview system imaginable. The suspect doesn't have to answer any questions - no adverse inference can be drawn from silence - in these circumstances every solicitor will advise the suspect not to answer any questions. Marvellous - but quite unlike the systems elsewhere in Europe (eg in England and Wales where the caution is qualified by the 'it may harm your defence if you don't mention....' bit at the end).

  15. 'Had it been screamingly obvious that the domestic Scottish law was not meeting the standards of fairness required by the ECHR then Rodger and Hope had plenty opportunities to say so when they were in Edinburgh'

    Judges can only decide on matters which have been put to them.

    I'm not aware of the Cadder point being put to either Hope or Rodger when they sat in the High Court.

  16. mrbfaethedee said...
    'I have no legal bones in my body (whatever that might mean)'

    I think it might mean that you're illegitimate.

  17. LPW - thanks, I wasn't aware of the asymmetry. Another aspect with which to be confused.

    Anonymous said...
    "I think it might mean that you're illegitimate."
    You charming ...

  18. Politicians are instated and removed.
    Judges too. It happens.
    Our First Minister has an advisory role in the removal of a judge.
    After he takes advice from a committee of the learned.
    More faffing about. By those paid handsomely to do so.

    Judges are employees. Are we to legislate and hope they are not partial in law enforcement?
    The electorate decides if we want, need or are willing to pay for the present myriad of courts, higher authorities, checks and balances.
    They also decide how we run our prisons, schools, health service, cars and much more.
    They are qualified to make these decisons.

    Judges and the supreme being of human rights are not independent of the electorate.

    For the marriage of flowers and vegetables some of us don't give a fig.

  19. LPW, this qustion of admissibility is one that is exercising me. The First Minister quoted Judge, so I looked it up on the ECtHR website, and here it is (sorry for the long string!):-

    http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight="THE UNITED KINGDOM" | High | Court | of | Justiciary&sessionid=72077034&skin=hudoc-en

    Evidently the learned judges of the ECtHR did indeed apply their minds to Mr Judge's case without its having been near the UKSC. I appreciate they might not have been so forgiving of procedural peccadilloes in Mr Fraser's case though, evidently, it does happen. Perhaps they just take the UKSC at its own (disingenuous) word. After all, as Lord Hope his very sel' opserved in Fraser, "As I recently sought to emphasise, this court must always be careful to bear
    in mind the fact that the High Court of Justiciary is the court of last resort in all
    criminal matters in Scotland..."

  20. Excellent destruction of the Salmond/McAskill case here.


    By Prof. Tony Kelly of Strathcyde uni..

    summing up: "The truth is, if the Government continues to fail to respect human rights it will find itself in bother. If it continues to make ill-informed comments rather than dealing with the real issues it cannot hope to carry the day in connection with its proposed changes to the law."

    ...says it all really

  21. Am Firinn,

    I avoided getting into it on the hoof - as it is a bit arcane - but the caselaw of the ECtHR on exhaustion does not require an applicant to seek "extraordinary" remedies, to be taken to exhaust domestic remedies and thus avoid inadmissibility on this ground. The six-month rule - requiring applicants to lodge their case within six months of the final domestic disposition of their case - can be problematic here. Applicants often resort to such extraordinary domestic remedies - but the six-month rule will still run from the decision the ECtHR take to be "final". A number of cases have been declared out of time and inadmissible as a result.
    I may have to look into the jurisprudence on this a little more closely.

  22. Braveheart,

    I'm not so sure. In Kelly's piece, the High Court of Justiciary is basically invisible - and it becomes a question of the executive girning about human rights decisions. As I understand Salmond and MacAskill's comments on this - while there is some undertone along these lines - it is not the main issue. For reasons outlined more substantially above, I also don't think it is terrifically helpful to lose sight of the performance of the Justiciary court on human rights matters.

  23. LPW, I'm no lawyer, but Kelly's exposition seems quite clear to me.

    In Cadder, Scottish Law was wrong not to allow represntation at stages in questioning. Scottish Courts did nothing to correct it so Strasbourg (via London) did it for us. So we changed the law.

    As for Nat Fraser: it was clear case of non-disclosure which, for some reason, was not considered at the appeal in Scotland.

    Again the Supreme Court did a job that Scottish System should have done.

    The "invisibility" that you detect is, maybe, the point: our system should correct its own faults in respect of Human Rights. If it does not, Strasbourg (or the UKSC in place of) will do it for us. And if the Justiciary is "invisible", that's a sign of its dereliction of it's own responsibility, not a fault of the European System , of which the UKSC is a part.

    As for McAskill/Salmond: IMO it's a clear case of picking a fight, any fight, to create an atmosphere in the run up to a referendum.

    They have previous, after all....

  24. Braveheart,

    As I tried to explain in the post, I don't disagree with the analysis that the High Court of Justiciary isn't performing up to par on human rights issues. The critical point is not that non-disclosure was not considered in the Fraser case - it was considered, but the Scots bench dismissed Fraser's arguments. However, none of this necessarily implies that we have to keep the jurisdiction of the UK Supreme Court under the Scotland Act, however salutary that jurisdiction may have been in particular cases.

  25. LPW: thanks, that's helpful. The six-month limit should indeed concentrate minds wonderfully. It is symptomatic, then, that their Lordships of the UKSC have decided that even the one-year limit of the Human Rights Act 1998 doesn't apply to devolution issues, which appear to be subject to precisely no time-limit whatsoever.

  26. @LPW "... none of this necessarily implies that we have to keep the jurisdiction of the UK Supreme Court under the Scotland Act, however salutary that jurisdiction may have been in particular cases."

    And none of it necessarily implies that we have to relinquish the jurisdiction of the UK Supreme Court under the Scotland Act.

    After all it has been salutary in particular cases.

    So it all comes down to the politics.. as I said...grumbles and grievances and anti-English sub-themes...the usual Nationalist recipe...

  27. Braveheart,

    I've maintained that it is a political question from the outset - and we'd all do better if we realised that. That said, we should avoid the temptations of oversimplification. Supporting the distinct jurisdiction of Scots Law - and opposing the intervention of any UK Supreme Court - need not entail political Nationalism or shade into any anti-Englishness as you imply.

  28. I need a point of clarification please. Was the UK Supreme Court decision based on interpretations of ECHR, which the Scottish trial did not live up to, or was it based on UK law which the Supreme Court acts on? I suspect it the former...thanks

  29. Anonymous,

    Do you mean in the UK Supreme Court's Nat Fraser judgment? Its a rather complex judgment in some particulars - about the interaction between tests to determine new evidence appeals - and Article 6 of the European Convention on Human Rights, concerned with rights to a fair trial.