A modern democracy

cannot be established

from this thinking

John McGovern

 

The excerpt from Lord Hope's speech presented in SR (1 June) defines a model of probity. Its articulation of why Scotland should embrace the UK Supreme Court ('the UKSC') should serve as a lesson to those who seek to be educated on the rudimentary basis of our court structure. Moreover, to those who seek to offer a political and constitutional settlement based on the independence of one country from another, then his speech offers a reminder of the high-level principle required for that achievement to be fulfilled.
      Lord Hope cites 'The Rights of Man', the philosophical cornerstone of the United States, which was written by Englishman Thomas Paine, one of the greatest political advocates in history. Paine's classic was published 15 years after his 'Common Sense' pamphlet, which, at the time, was the best-selling publication in American history: a remarkable fact considering it was published during the American Revolution. But then when it comes to citizens' rights and the safeguards that the state provides to protect those rights, we will always seek to be reassured. That is, as Paine suggests, 'common sense'.
     It surely must dismay even the most ardent nationalist to read of the SNP's attacks on not just the UKSC, but on the judges who lend their expertise to its bench. It is difficult to reason that a modern, wealthy, independent democracy can be established from such thinking. As Paine said, 'Laws ought to be designed for no other end ultimately, but the good of the people'. The European convention on human rights, the 20th-century version of 'The Rights of Man', is eloquent of those very sentiments. In the recent robust criticism of the UKSC by the Scottish Government, the 'good of the people' has been overlooked. Not a criticism that can be directed at the Supreme Court itself or its Scottish judges.
     As a signatory to the convention, the UK established the Supreme Court to specifically address 'legal points' arising in cases where the articles of the convention had been invoked as having been breached by a public authority, that is to say the state.
      The UKSC is only concerned with ensuring minimum rights under the convention are secured throughout all jurisdictions of the UK. By signing up to the convention the UK government agreed to allow restrictions on our laws and jurisdiction in order to comply with the convention. Minimum rights in domestic law and procedures must be secured to safeguard the rights of individuals under state control. In short, the convention allows member states to legislate, or develop common law as they see fit.

 

     However, there are certain minimum rights that have to be maintained by the state within its own systems. If those rights are breached (as in the Fraser case where the appellant's article six right to a fair trial was breached because of a failure by the prosecution to disclose exculpatory information to the defence, the omission of which helped the Crown form the 'cornerstone' of its case), then the UKSC will refer the case back to Scotland and allow the authorities to proceed at their own discretion. The UKSC will not quash convictions and will not order that convicted criminals be released. Nat Fraser is still behind bars. Peter Cadder is still being prosecuted at the court where it all began: Glasgow Sheriff Court.
     The best Scottish judges are appointed to the UKSC. Currently both are former lord justice generals (the highest criminal law judge in Scotland) and one is also a former lord advocate. It is therefore inappropriate to suggest they are unable to properly consider Scots cases. The suggestion that 'Scottish' judges need to determine 'Scottish' appeals, is open to question when it is considered that if Scottish appeals were to be referred to Strasbourg, then Scottish judges would be outnumbered to a much greater extent.
     The truth is that Scottish courts have repeatedly refused to engage in, and apply, convention rights in criminal cases. There is a host of reasons for this, but it is in part because of a very narrow, recent tradition of failing to consider international approaches. It is not because of the eminent jurisprudence emerging from the Supreme Court.
     Indeed, neither Messrs Salmond nor MacAskill is suggesting that the UKSC got it wrong in the infamous Cadder case. That is to say, they accept that a suspect should have a right to legal advice before being interviewed by the police. Some impartial observers may have thought that such a right was as old as Paine's 18th-century declarations themselves. But in Scotland, it took until last year for this right to be afforded to our citizens – by the Supreme Court. But the SNP government appears to be saying that the UKSC should never have had the right to make such an obviously fair and correct decision in the first place. 'They were right, but they shouldn't have been allowed to decide that they were right' is the size of it.
     The belief that the UKSC should have no jurisdiction in Scotland is not born of a desire to enhance the rights of the Scottish citizen, it is not born of a desire to advance the common 'good of the people', but it is born of a desire of this nationalist government, with an unprecedented majority, to reason for its country's independence. But so long as the United Kingdom remains a signatory to the European convention on human rights, then the SNP government's strategy remains seriously flawed. No democratic nation can be established on such political opportunism.
     For those, like me, who subscribe to the rule of law, and yet read of our cabinet secretary for justice threatening to close a court because it doesn't reflect his ideology, then the words of Thomas Paine seem succinct:
     'Government, in its worst state, is intolerable'.

 

John McGovern is a solicitor advocate and the immediate past-president of the Glasgow Bar Association. He has his own law practice in Glasgow city centre and has written extensively on legal matters