Independence of Scots Law at risk from Scotland Bill


by Alex Porter

Scottish Lib Dem peer and former Depute First Minister of Scotland Jim Wallace has inserted an amendment in the Scotland Bill which will see criminal appeals from Scotland’s High Court of Justiciary go to the UK Supreme Court.  There are concerns that this little publicised aspect of the Scotland Bill will lead to a diminution of the powers of Holyrood, and is a threat to the identity and independence of the Scottish legal system.

“Loss of identity”

Elish Angiolini QC, Scotland’s Lord Advocate, has warned that Scots law will suffer a “loss of identity” because of the UK Supreme Court’s extended powers to rule on Scottish human rights cases.

Giving evidence to the Scottish Parliament’s Scotland Bill Committee, Scotland’s top law officer explained: “Because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom, or where it is a very new piece of jurisprudence which is clearly ambiguous.”

Her comments follow the controversial decision taken by the Supreme Court in the Cadder v HMA case, which overruled a previous decision by the High Court of Justiciary in Edinburgh.  The Supreme Court ruled that detention of suspects by the police without access to legal advice breached the European Convention on Human Rights (ECHR).  The decision has had serious implications as a total of 867 cases have since been unable to proceed or continue as a direct result, according to a review on the impact of the case by the Crown Office and Procurator Fiscal Service (COPFS).

Unclear on the scope of the Cadder appeal ruling, Angiolini has now sought the referral of five cases to the UK Supreme Court to achieve a “definitive resolution” on the matter.

A spokesperson for the Crown Office said: “The judgment of the Supreme Court in Cadder v HMA has given rise to a number of collateral issues.  It would be beneficial to achieve a definitive resolution and referring these cases to the Supreme Court is the most effective way of achieving that.”  The five cases are not expected to be heard until October.

Fears are that Jim Wallace’s (Baron Wallace of Tankerness) amendment will render Scots criminal law subservient to the UK Supreme Court in all matters.

As Scotland’s Advocate General, Wallace has had an amendment inserted into the Scotland Bill which removes the authority of Scots law in relation to criminal appeals.  Part of the ammendment includes:

“Remove acts of the Lord Advocate in her capacity as head of criminal prosecutions and investigation of deaths in Scotland that are incompatible with any rights conferred by the European Convention on Human Rights that are given effect to by the Human Rights Act 1998 (“Convention rights”) or Community law from the ambit of section 57(2) of the Scotland Act; and

“Create a statutory right of appeal from the High Court of Justiciary sitting as a criminal appeal court to the Supreme Court in relation to matters where it is alleged that the Lord Advocate has acted incompatibly with any such Convention right or Community law to replace the existing devolution issue procedure that currently applies in such cases.  The jurisdiction of the Supreme Court should be maintained both for reasons of constitutional propriety and, more importantly, to ensure that fundamental rights enshrined in international obligations are secured in a consistent manner for all those who claim their protection in the United Kingdom.”

The idea of transferring the statutory rights of appeal from the Scottish High Court of Justiciary to the UK Supreme Court is supported by the Scottish Human Rights Commission (SHRC) in criminal cases where it is alleged that the Lord Advocate has acted in breach of the European Convention on Human Rights.

Giving evidence to the Scotland Bill Committee earlier this month, Professor Sir David Edward (University of Edinburgh), a former European Court of Justice judge who recently produced a report on this area of legal jurisdiction, said: “It is perhaps significant that in their submissions to us the Scottish Government, the justice directorate, the Scottish Law Commission and, indeed, the Lord Advocate all said that the Supreme Court’s jurisdiction should be totally brought to an end.  Our view was that there was a case for giving the Supreme Court some jurisdiction, but not in the form in which it had previously existed.”

SNP Justice Secretary Kenny MacAskill told Newsnet Scotland that his view is that Scottish courts should be the ultimate decision-making authority in every aspect of criminal law.

The telling question amid this whole process is why won’t Jim Wallace, a Liberal Democrat peer, consider the option of allowing all these powers to be held entirely by Scottish courts where ultimately the judges are Scottish instead of solely considering further centralisation?

Liberal Democrats: promises, assurances and bearing gifts

These latest revelations give further credence to the argument that the Scotland Bill, which was supposed to further devolve powers to Scotland, is in reality a Westminster Trojan horse designed to take powers back.

Experts have told Newsnet Scotland that some of the new powers being devolved will almost certainly be used such as Scottish Duty Land Tax (SDLT), landfill tax and the ability to borrow but these powers are insignificant compared to the far more substantial taxes such as Corporation Tax, national insurance or VAT.

Ostensibly there are a significant transfer of income tax powers but Newsnet Scotland is advised that because of the way the Bill has been crafted there is an inbuilt cost-disincentive to using this tax.  A number of renowned experts such as economists Jim and Margaret Cuthbert and Professors Andrew Hughes-Hallett and Drew Scott of George Mason and Edinburgh universities, among others, argue that the income tax powers are “dangerously flawed”, “unworkable” and “a perfect storm”.

Observers will be forgiven for concluding that the income tax powers have been designed this way on order to give the impression of more powers being transferred.  This strategy would have the effect of partly placating the Scottish electorate’s desire for their parliament to have full tax powers whilst actually taking powers away from Scotland.  The aim, critics will speculate, is to achieve confidence whilst picking Scotland’s pockets of existing devolved powers – a ‘confidence trick’ or ‘con’.

The role of Jim Wallace – now a member of the unelected House of Lords – in the Scotland Bill process indicates a trend, according to some commentators, of how Liberal Democrat politicians readily abandon their liberal principles of decentralisation and federalism upon catching a whiff of power.

The debate over the value of a Lib Dem promise has taken another twist in relation to the Scotland Bill as news unfolds that powers have been dropped or at best delayed from the Calman proposals, including air passenger duty, aggregates levy and the assignation of income tax yield from savings and distributions.  This completely contradicts promises and assurances from the Lib Dem leadership.

In addition, some powers already held by the Scottish Parliament in areas such as insolvency law, charity law and the regulation of the health professions may actually be taken back by Westminster.

In May last year Liberal Democrat MP Alistair Carmichael, now depute chief whip to the House of Commons said:  “Calman’s recommendations will be implemented and many other Scottish issues on which Labour has prevaricated will now be tackled.”

Current Secretary of State for Scotland Michael Moore (Lib Dems) promised that the proposals recommended by the Calman Commission would be “implemented in full.”

Leader of the Lib Dems’ Holyrood group Tavish Scott offered assurances that the proposals of the Calman Commission would be implemented in full insisting: “Absolutely … no doubt”.

Given that the Scotland Bill radically affects the nation one would expect the Lib Dems to seek a referendum on the new devolution settlement.  No such vote is being planned by the ConDem coalition government although they are holding a referendum on a new voting system that no-one wants.

As for the Bill itself, there will be a number of hearings at Westminster today.  Professor Hughes-Hallett, who believes that the Bill is “dangerously flawed”, will be amongst those giving evidence.

In Scotland’s media much has been written about the problems associated with the powers included within the Bill, but the unwritten story is about the powers that have been dropped or re-reserved.