Kenny MacAskill and the Scottish Government seek a ‘remedy’ to UK Supreme Court, appoint better judges and sit down, this case is a loser!

Dear All

The Justice Secretary Kenny MacAskill is unhappy that the UK Supreme Court in his opinion has “undermining the independence of Scots law”.

They haven’t.

All they have done is the work that the Appeal Court in Edinburgh should have done in the first place but didn’t concerning human rights.

Kenny MacAskill has spoken out the day before the Scottish cabinet intends to discuss how to "remedy" the situation.

If this is taken to the joint Cabinet meetings between the Westminster and Holyrood Governments, it can be brought up.

And blown out the door!

As a legal case, it is a loser.

A ruling happened last Wednesday that saw Nat Fraser's conviction for murdering his estranged wife Arlene quashed as unsafe.

And also the Supreme Court sparked controversy for a ruling, known as the Cadder judgment, on the rights of suspects to legal representation.

On both these issues the UK Supreme Court was right.

The Cadder ruling on October 26 last year overturned a decision by seven senior Scottish judges.

These people who are supposed to the guardians of fairness and justice singly failed to uphold that task.

It was up to the UK Supreme Court to find suspects to be held and questioned for six hours without access to a lawyer was a breach of the European Convention on Human Rights.

Speaking on BBC Radio Scotland's Good Morning Scotland programme, Mr MacAskill said:

"We're in a situation not anticipated when the Scotland Act was developed. It was meant to be a situation that when the Supreme Court was invoked that criminal law would remain in the jurisdiction of the High Court of Justiciary in Scotland. I don't think anybody ever imagined that we would have the routine challenges on human rights cases going directly to the Supreme Court."

The alternative if Scots are banned from the UK Supreme Court is to take the case directly to the European Court in Strasbourg.

And is anyone advocating denying that human right?

No!

So, the Court of Appeal in Edinburgh isn’t the final arbiter as touted by certain people, namely the Justice Secretary Kenny MacAskill.

He says the majority of judges at the Supreme Court do not have any knowledge or custom of Scots law.

And you don’t need to; if a case is being tamper with, it is wrong in any jurisdiction.

You don’t even need a law degree to work that out.

For Scottish criminal cases, the court can be used only when the case relates to "devolution matters", a term covering the legislative competence of the Scottish Parliament in dealing with human rights issues.

Prominent Human rights lawyer John Scott, also speaking on the BBC programme, earlier said First Minister Alex Salmond was wrong to be concerned at the actions of the court.

Mr Scott said:

"I think there's a sense of perspective being lost. There's only a very tiny number of cases ever go to the Supreme Court. It doesn't have jurisdiction over the vast majority of criminal cases; it's only in relation to human rights points."

Will Westminster amend the Scotland Act to prevent human rights cases going before the UK Supreme Court?

I would say no!

Can the Scottish Cabinet ‘remedy’ the situation?

Yes, appoint better judges who understand human rights law.

But as any decent lawyer or law student would tell you, the Scottish Government legally doesn’t have a leg to stand on.

Save your money, time and resources, this case is a loser.

And the ‘remedy’ is not to proceed further.

Yours sincerely

George Laird
The Campaign for Human Rights at Glasgow University