Supreme Court ‘flawed’


LEGAL experts reviewing the relationship between the High Court of Justiciary and the new UK Supreme Court have called the system ‘flawed’.
Lord McCluskey’s Review Group was set up by the Scottish Government as a result of public concern that the Supreme Court was becoming involved in Scottish criminal cases that should be the jurisdiction of the Scottish courts.
The Review Group, which reported on Monday, found that Scotland faced more intrusive jurisdiction from the Supreme Court than the rest of the UK. Lord McCluskey said the new system was “flawed” and called for coherence across the UK. First Minister Alex Salmond welcomed the findings.

The Review Group says that this ‘widening of jurisdiction, as exercised by the Supreme Court, whatever the intention of the UK legislature when the Scotland Act was passed, had surprised everyone and had created real problems’.

It finds that the High Court of Justiciary ‘has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases.’

The McCluskey report also says that the existing statutory basis for bringing human rights issues to the Supreme Court is ‘seriously flawed’.

The report recommends a new provision, with proposed amendments to the Scotland Bill, which would place the High Court of Justiciary ‘on an equal footing with its counterparts elsewhere in the UK, by enabling the Supreme Court to grant permission to appeal only if the High Court of Justiciary has granted a certificate that the case raises a point of general public importance’.

The McCluskey report also recommends that it should be made clear that ‘the jurisdiction of the Supreme Court should be exercised in such a way that it identifies clearly the law that the criminal courts have to apply, but that the application of the law to the case in which the issue is being litigated should be remitted to the High court of Justiciary’.

This would help preserve the traditional role of the High Court of Justiciary under current constitutional arrangements by ensuring “that the Supreme Court, in dealing with its human rights jurisdiction in criminal cases, would concentrate on identifying and articulating clearly the relevant law contained in the Human Rights Act and would not proceed to decide the case as if it were the High Court of Justiciary.”


It has also been announced that the Supreme Court judge and former Lord Advocate, Lord Rodger of Earlsferry, has died aged 66. Lord Rodger served three years as Scotland’s top law officer and was one of the original 12 members of the UK Supreme Court.First Minister Alex Salmond said Lord Rodger had made an “outstanding contribution” to Scottish public life.

Lord Rodger’s replacement on the Supreme Court may be influenced by the controversy over the Court’s intervention in Scotland.