Scots lawyers have always been very proud of the separate identity of our system, and alert to defend it from external interference, intended or unintended.
It comes as some surprise to me, therefore, that there is considerable resistance within the profession to the proposal of the McCluskey review group, now confirmed in its final report, that appeal from the High Court of Justiciary as criminal appeal court, to the UK Supreme Court on matters relating to alleged breaches of the Human Rights Convention, should require a certificate from the High Court that a point of "general public importance" has been raised.
To recap, the group was appointed by the SNP Government as a means of taking the heat out of the row generated by the First Minister's and Justice Secretary's remarks about the Supreme Court, following its decision in the Nat Fraser appeal in May. The group's proposals in part adopt and in part criticise the UK Advocate General's tabled amendments to the Scotland Bill based on last year's report by Sir David Edward's expert group. One of the key differences is over certification.
It is the Scottish ministers' fault that the issue has political undertones. Their intemperate outbursts should stand on the record as a lesson in how not to debate our legal system, and in particular the position of the judiciary. However in looking for what is best for the system, and the people it serves, we have to try and leave this background behind.
For one thing, it is anomalous that Scotland, which before the Human Rights Act permitted no form of criminal appeal at all beyond its borders, should now be the only UK jurisdiction from which appeal can be taken without requiring the proposed certification. McCluskey canvasses the various arguments and concludes that whichever position is ultimately taken will leave an "asymmetrical" position as between Scotland and the rest of the UK.
The group's approach is rather to "preserve the special constitutional and historical position of the High Court as the final court of criminal appeal in Scotland", and to seek to ensure that the Scottish system, unique in its historical independence from the "apex criminal appeal court" for the rest of the UK, "should not now, in the area of Convention rights, become more subject to interference from that apex court than the courts of these other systems".
It is odd to find so many Scots lawyers preferring an approach that works against that special position. The importance to be attached to human rights issues is not to be denied, but it is questionable whether the Law Society of Scotland, in its initial response to the report, is correct to conflate the question of certification with the promotion of access to justice. As McCluskey points out, "Taking rights seriously, in our view, is not about maximising the scope for appeals to be heard before the Supreme Court... Rather, it is about ensuring the optimal division of labour between courts" – which, I would have thought, equally embraces considerations of access to justice.
Nor should policy be dictated by any assumption that the Supreme Court takes a more accused-friendly approach to human rights: there have been appeals such as Brown v Stott (in Privy Council times) when a decision has been reversed in the other direction.
It is entirely right that Scots law should be capable of being tested against internationally accepted criteria of basic rights of the individual. That is not challenged, and it is only the more dogmatic nationalists who would leave a citizen dissatisfied with a decision of the domestic courts to embark on the difficult and drawn-out trip to Strasbourg rather than seeking to appeal to London with its quota of Scots judges. But do we really have so little faith in the quality of the system we call our own, that we will not contemplate putting it on a more equivalent footing to other UK courts?
It would be good to hear Sir David Edward's views on the latest proposals.