The Scottish legal system is respected, and in safe hands

Scotland has its own distinctive tradition of criminal law and criminal procedure. There are many aspects of it of which we can quite rightly feel proud. However, as part of the United Kingdom, Scotland is part of a state which has undertaken to comply with the European Convention on Human Rights, as surely Scotland would also wish to do were it independents.

Occasionally, there will be a conflict between those international obligations and domestic law. That is true whatever part of the UK is involved. Until 1998, the conflict would give rise only to a remedy in international law, by a UK citizen exercising his or her right of individual petition to the Strasbourg court. It was that which led to the abolition in our schools of corporal punishment, when the Strasbourg court held that the suspension of a child who refused to submit to the tawse violated his right to education.

In 1998, it was decided that those convention obligations should be enforceable in domestic law: that rights should be brought home. That was the approach enacted via the Human Rights Act and also the Scotland Act of that year. A theme common to the schemes of devolution for all three jurisdictions – Scotland, Wales and Northern Ireland – was that effect should be given to the UK’s international obligations in framing the devolved institutions’ legislative competence and the executive powers vested in their ministers. It is hard to see that it could have been otherwise.

In Cadder, the Supreme Court had to consider whether Scottish legislation which permitted police to detain an individual for six hours and question him without allowing him access to a solicitor, and then to rely upon that evidence at trial, was contrary to Article 6 (2) of the convention. It held that it was not, so it was not within the prosecutor’s power to lead evidence of admissions made by an accused in those circumstances – a different conclusion to that reached by seven judges in the High Court of Justiciary.

Was the Supreme Court, in reaching its decision that the provisions of Scots law were incompatible with the convention, somehow insensitive to the specialities of Scots law? I suggest not. There was certainly no pressure of any kind by the judges from England and Wales and Northern Ireland to treat the case in that way. The reason for the difference in result between the High Court of Justiciary’s decision and the Supreme Court in Cadder was not a difference in view as to the merits or demerits of Scots law. What distinguishes the two decisions is a difference of approach between the two courts to the convention