Amnesty International has entered the row over the UK Supreme Court’s role in Scottish cases, warning that human rights must not become the “whipping boy” in the debate that has set the SNP government against the judiciary.
Although the Scottish legal system is distinct from that of England and Wales, some appeals from Scotland can go south of the border when an accused claims that his human rights have been breached by an unfair trial. A series of cases in which the London-based judges have overruled decisions made in Scotland have provoked fury at Holyrood — although ministers have been at pains to say that they are not commenting on specifics.
John Watson, programme director for Amnesty International, said: “The rights outlined in the European Convention on Human Rights (ECHR) are deeply entrenched within the Scotland Act, and it is imperative that as a party to the ECHR, there must be a guarantee of an effective domestic remedy for violations of these rights. Any discussion of the reform of the court system in Scotland, including the system of appeals, must ensure that people in Scotland are not discriminated against. Were Scotland to break ties with the UK Supreme Court, Scots would have one less right of appeal than the rest of the UK. If such a change is proposed then it must be accompanied by a discussion of what replacement would ensure that Scots are not unfairly disadvantaged.”
Justice, the law reform group, said that any move to restrict the role of the court would simply mean human rights cases being decided in Strasbourg, where the judges might have less understanding of Scots law.
“The court ensures that all UK citizens can benefit from the same protections wherever they live and that all governments conform equally to our international obligations,” said Roger Smith, its director. “Scotland has a nationalist agenda and that is the context for this debate. But it is also true to say that the judiciary, in relation to human rights there, has been rather complacent and not applied Convention rights in criminal cases. This is a wake-up call.”
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Baroness Kennedy of the Shaws, a Labour peer and QC, said: “This is more about politics than the law. I can understand why Alex Salmond is making the point he makes — it plays very well with the public.” But the law was enriched, she said, by having scrutiny from elsewhere.
Lord McCluskey, a former Labour solicitor-general, was appointed to review the role of the Supreme Court, and his interim report last week has urged some changes. The key one is for a filter on cases going from the Scottish courts to the Supreme Court, as in England and Wales. Scottish judges would have to certify that there was a legal point of general public importance that merited an appeal to the Supreme Court in London. But the review has rejected the idea of removing Scotland from the Supreme Court’s role. A final report will be presented later this year.
Last October, in the so-called Cadder case, the court ruled that the practice of carrying out interviews when suspects had no access to a solicitor was in breach of the ECHR.
Nearly 3,500 cases were estimated to be affected by the judgment, and ministers announced plans to change Scots law with emergency legislation. However, the scheme put in place, which came into operation on Monday, has been condemned by criminal lawyers and has set the professional body, the Law Society of Scotland, against the Scottish Legal Aid Board.
The board drew up a new system through which legal advice is provided in police stations. It means that all requests for assistance must go through the board and are then passed on to a specific lawyer requested by the suspect or to the duty solicitor.
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About 90 per cent of criminal lawyers have refused to sign up amid concerns that they will have to deal not only with their own clients but with any other suspects who are detained while they are on duty. If they were to sign up to the duty scheme, they could find themselves working unsociable hours — but if they do not, they will not receive legal aid payments if they step in to help their own clients.