By a Newsnet reporter
The role of the UK Supreme Court is “constitutionally problematic” and unless more narrowly defined risks undermining the “independence of Scots law” according to an independent report.
The report, compiled by an independent review group made up of respected legal experts, also describes parts of the current Scotland Bill as “profoundly flawed” and calls for a recasting of those parts of the BIll.
The findings will re-open the controversy into the role of the London based court that has seen several criminal convictions overturned.
The review group was put together at the behest of the Scottish government after fears that the UK Supreme Court was becoming a court of appeal for Scottish criminal cases instead of a mechanism for dealing with alleged breaches of human rights. Chaired by Lord McCluskey, it focused on the role of the Court under existing constitutional arrangements.
The final report recognises that:
- the current system whereby the UK Supreme Court acts as a court of appeal within the criminal justice system is constitutionally problematic, and affects the historical independence of Scots law
- to preserve this independence, the role of the UK Supreme Court needs to be more narrowly defined in relation to Scottish criminal cases
- the current Scotland Bill proposals (around the removal of the Lord Advocate’s acts from the UK Supreme Court’s devolution jurisdiction and the substitution of that court as a court of appeal) are profoundly flawed, and require significant recasting in order to maintain the High Court of Justiciary at the apex of the Scots legal system
- allegations of Convention rights incompatibilities occurring in criminal proceedings elsewhere in the UK do not reach the Supreme Court unless a certificate is granted by the relevant apex court, and there is no comprehensible reason for making the position of the High Court different in Scotland than applies in the case of courts elsewhere in the UK
Cabinet Secretary for Justice Kenny MacAskill welcomed the publication of the final report.
Mr MacAskill said:
“I wish to place on record my thanks to Lord McCluskey, Sir Gerald Gordon, Sheriff Charles Stoddart and Professor Neil Walker for producing this considered report within a short time frame. I welcome the conclusions the review group have reached and appreciate the in-depth analysis they have conducted around these challenging constitutional issues.
“There is a clear anomaly in that even where certification for an appeal is refused by the High Court in Scotland, there is still the potential for special leave to be granted by the UK Supreme Court. This is not possible for cases coming from the English courts and the Review Group agrees that there is ‘no comprehensible reason’ for this inconsistency. I believe that our High Court of Justiciary should have the final say on which points of law are of general public importance and I therefore support the suggestion of a certification process.
“Some of the finest legal and constitutional minds in the country have recognised that the UK Supreme Court plays a much more significant – and inappropriate – role in Scottish criminal law than had been envisaged when the Scotland Act was passed, and that it is more intrusive within Scots law than is the case for the other jurisdictions within the UK. If this situation continues, this has serious implications for the independence of our historical legal system.
“I particularly welcome the Review Group’s constructive recommendations around redefining the role of the UK Supreme Court in Scottish criminal cases. I agree that the High Court of Justiciary must sit at its rightful place at the apex of the Scots legal system.
“I am also in wholehearted agreement with the Review Group that the Scotland Bill proposals are ‘seriously flawed’. Indeed when dealing with the role of the Lord Advocate the proposals are quite dangerous and actually entrench the role of the Supreme Court as a court of criminal appeal.
“Clearly in an independent Scotland the solutions would be simpler with cases referred from the Scottish courts direct to the European Court of Human Rights. But we must deal with the existing, albeit unsatisfactory, constitutional position and act to restore and protect the traditional role of our High Court and put it on an equal footing with higher courts in the rest of the UK. We will now consider the solutions set out within this seminal report and how the Scotland Bill can help to put right this wrong.”