The Scottish legal system is being "undermined" by the devolution settlement and the influence of the Supreme Court, according to First MInister Alex Salmond.
Writing to Lord Wallace of Tankerness, the Advocate General for Scotland, ahead of yesterday's Cadder decision in the Supreme Court, Mr Salmond is reported as complaining that the devolved institutions as well as the court system are being "disadvantaged by unforeseen complications" arising from the way that compliance with the Human Rights Convention, as policed by (now) the Supreme Court, is built into the Scotland Act.
Although he does not appear to challenge the human rights regime, he maintains that the framework is more burdensome and leaves public authorities more exposed in Scotland than elsewhere in the UK.
Given his support for Scottish independence, one can see that Mr Salmond feels that his Government's, and the law's, hands are somewhat tied by the present arrangements. And it is no doubt true that with ministers' powers being in effect subject to a vires test against ECHR (and EU) law – and that includes acts of the prosecution system under the Lord Advocate – there is a tighter degree of legal control than one would expect to find in a sovereign state, even a signatory to the Convention.
Should we as lawyers be sorry to see that? Or should the people of Scotland? What we have after all is a more effective means of legal redress, or access to justice if you like, against abuse of power than if we had to go through the mechanism of an application to the court in Strasbourg. With the devising of effective legal remedies taking up so much time and effort in other areas (reference the Gill review etc), why should we start tinkering with one that actually works quite well? The fact that investigation and prosecution of crime is in issue should not distract us from this principle.
There may be room at the edges for a greater power to grant relief from the consequences of actions taken in good faith and in accordance with the law as it was understood at the time (Lord Hope would have been minded to exercise such a power in Cadder if it had existed), but it doesn't look very good if politicians go complaining about losing the distinctiveness of a system on a matter on which it has become increasingly out of step with accepted good practice across most of Europe. It is not obvious to this commentator at least, how unfairness in obtaining an incriminating statement (which is then admitted in evidence) can be compensated for by other procedural safeguards.
Justice Secretary Kenny MacAskill protested following the decision that Cadder overturns decades of practice in a "proud, distinctive justice system, developed over centuries, and predicated on fairness with many rigorous protections". Most Scots lawyers do indeed take a pride in their system, but that does not mean that it is free of weak links, and the detention provisions are a statutory creation of quite recent origin.
As for the status of the High Court, Mr Salmond regrets that it is no longer the highest criminal authority, another distinctive feature of the system, so he claims, to have become an unintended casualty of the devolution arrangements. But is Scots law the poorer for it? I doubt it.
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