With the UK Supreme Court ruling regarding the interpretation of ECHR and access to lawyers; the High Court has been effectively overruled.In what seems like the death of Scots independent judiciary; the High Court Edinburgh and the legal profession based in Edinburgh has been rocked.
According to the Act of Union, 1707, Scotland's High Court could expect to remain the highest court in Scotland. The precise wording, finally signed off by the Scots lords of the Union was that we could all expect it to "remain in the same force as before". So what has went wrong?
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Was it ECHR? In part yes. Labour created a mountain of legal problems and difficulties after signing the UK up to the European Court of Human Rights, rather than maintaining our opt out. One such problem, which is now central to the demise of an independent Scots legal system, was the right to a lawyer. In Scotland; as in France, Ireland Netherlands, Belgium; suspects were not allowed access to a lawyer for 6 hours. However due to the ECHR legislation providing this as a 'fundamental right' - Scotland alongside France and the rest are having serious legal problems implementing it.
However the adoption of the ECHR isn't the main cause of the crisis and loss of independence for the Scots judiciary to a London based court. The real threat has come from the UK Supreme court; legally not allowed to adjudicate over Scottish cases; overruling our High Court. According to the latest decision by the Supreme Court - London - has interpreted the provisions of the Scotland Act differently. So we arrive at the next aspect of the issue. The Scotland Act, another Labour constitutional mess.
As Kenny MacAskil said, "Due to discrepancies in the Scotland Act, the High Court was overruled by a London-based Court." The Supreme Court, interpreting differently from the High Court, due to poor Labour-drafted Scotland Act wording has now placed itself up above the High Court. The exact ruling seemed itself harmless enough, but it wasn't and ended up creating a 5hour emergency-crisis debate in Holyrood as the Scots legal system faced the complete breakdown of the Police right to detain any suspects.
The Supreme Court decided, contrary to the High Court, that the Scots right to detain suspects for up to 6 hours before enabling access to a lawyer breached the ECHR. Yet no one seems to bother with why this right was fundamental to the police in Scotland in the first place!
The reason the police were granted this right, unlike in England, was because the police had significantly less time to hold suspects before charges had to be brought. So - in the round - the Scots setup made for more equity in the balancing of justice. That is all lost now. Scotland has been forced to conform to a ruling by an English court. Disgraceful.
Unfortunately, it doesn't end there. No - according to the Scottish Solicitor General, the emergency legislation rushed out by the SNP government and ratified by Holyrood opposition parties itself probably still doesn't conform to ECHR. ... where does this leave us? Well, for the moment the uniquely Scottish balance of justice has been lost to an English-based court. And police have to now provide access of suspects to a lawyer immediately. The new, still legally theoretical, right of Police to detain for up to 24 hours to compensate however ... well the Solicitor General thinks if the police use it ... they may lose any conviction to a technicality - as the UK Supreme Court may always decide that this too still represents a fundamental breech of ECHR...
If the SNP do anything, maybe they could ask if we could get our independent legal system back? After all, we were promised that it would "remain in the same force as before". Mind you, we were also promised more than 64 MPs ... but that guarantee has been striped from Scotland by London too. Ever have those moments when you feel like a promise isn't worth the paper it is written on?
















