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Human rights

Brian Taylor | 15:59 UK time, Wednesday, 27 October 2010

Took some time for the Holyrood debate on the Cadder-enforced reforms to get going. But, when it did, it was fascinating - and notably lively.

The opening exchanges were Appeal Court dusty. Never mind the rhetoric, counsel, just give me the relevant dates.

But it soon livened up. Firstly, Robert Brown of the Liberal Democrats delivered an impassioned warning that the changes, designed to enhance human rights, might end up eroding them.

How so? Because, coupled to the right to consult a solicitor prior to interview by the police, the detention time is to be extended from six hours to twelve with the option of 24 on the direction of a senior officer in exceptional circumstances.

Mr Brown's contribution was thoughtful, focused and well-argued.

Next, the debate moved onto a constitutional plane. Stewart Maxwell of the SNP noted that the intervention of the UK Supreme Court in this matter involved a diminution of Scots Law.

He noted further that the said Supreme Court - while headed in this instance by two Scots - featured "a majority of English judges", contrary, he said, to assurances that distinctive Scots matters would not be settled in such a form.

Powers 'exceeded'

The argument here, also advanced in somewhat milder form initially by Kenny MacAskill, the Justice Secretary, is that the ultimate court in Scottish criminal cases is supposed to be Scotland's own supreme court.

Previously, it was possible to take "ultra vires" cases to the Judicial Committee of the Privy Council.

Those were cases where it was alleged that the powers in the Scotland Act had been exceeded.

That role was transferred to the new UK Supreme Court - against the advice of those who warned that it would eventually result in that court arrogating further powers to itself.

The Cadder case is just such an "ultra vires" test.

That is because the European Convention on Human Rights was incorporated within the Scotland Act 1998.

At the time, that was trumpeted as an example of Scotland being ahead of the game, of Scotland being in the advance guard of liberal reform.

Evocative argument

Now, doubts are being voiced and voiced strongly.

The UK Supreme Court ruled, themselves, that they were entitled to form a judgement in the Cadder case as to whether the Crown Office in Scotland breached the ECHR element of the Scotland Act by pursuing a case where the suspect had been questioned by police in the absence of a solicitor.

To be clear, the minister made precisely this point in his opening address - although he appeared at that point, understandably, to be suppressing evocative argument in favour of winning the day for his emergency legislation.

He pointed out that seven Scottish judges, sitting in the High Court, had ruled that Scotland's system of interrogation was ECHR compliant, given the substantial checks and balances on offer.

That principle had now been countered.

By virtue of a "devolution minute", the Cadder case had wound its way to the UK Supreme Court.

Mr MacAskill commented acidly that there appeared to be a "small industry" within his own legal profession eager to take such matters to the London court.

He noted further that he planned to seek action from the UK government to ensure that the "centuries old supremacy of the High Court" in Scotland might be restored.

Argument 'nonsense'

As the debate wore on - and the argument intensified - rival arguments were adduced.
Several Labour MSPs complained at the tone of the Nationalist arguments.

This was not, they said, a constitutional matter but a legal and human rights issue. Mr Brown said the Nationalist argument was "nonsense".

Enter Alex Salmond. The first minister intervened to point out that every other signatory to the ECHR was able to put its case directly to the European Court in Strasbourg.

Only Scotland was subject, because of the Scotland Act "anomaly", to an interpretation by the UK Supreme Court.

More heat. Both the Liberal Democrats and Patrick Harvie of the Greens complained at those provisions on time.

Why rush that? Why not consult still further?

Emergency implementation

Plainly exasperated, Mr MacAskill fought back. It was, he said, a question of balance.

The rights of the suspect versus the need to pursue questioning. What if a solicitor could not be contacted in time? What if forensic investigations in serious cases were pending?

Labour and the Tories broadly backed the bill and its emergency implementation.

But Bill Aitken of the Tories said the flaw lay in the endorsement of the ECHR in the first place.

And, in a well-argued contribution, Richard Baker for Labour posed a small point.

While, he stressed, endorsing the ECHR, he rather longed for the day when the controversy would be about a ruling concerning the rights of the victim.

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