A top team of legal experts is calling for a change in the law to keep the UK Supreme Court out of Scottish justice.
The group, headed by former High Court judge Lord McCluskey, was brought together by First Minister Alex Salmond after the UK Supreme Court intervened in a number of high profile cases.
Lord McCluskey’s panel has issued a report making it clear nothing can prevent the Supreme Court from stepping in. But it has called for a change in the Scotland Act, which created the devolved Scottish Parliament, to give Scottish courts the same status as those elsewhere in the UK.
That would mean the UK Supreme Court could not step in without permission from the final court of appeal in Scotland, the Court of Session, and that could only happen if Court of Session judges asked for a ruling on a specific legal point “of general public importance that ought to be considered by the Supreme Court.”
Lord McCluskey said, “While the Supreme Court would continue to make final and binding rulings on human rights issues, including those arising in criminal cases from Scotland, it would do so in a way that reflected more clearly the long history of separate development of the Scottish criminal justice system.”
The panel says the same rules should apply to Scottish courts as across the rest of the UK. It is an “anomaly” that applied the law differently to Scotland since devolution, which “had surprised everyone and created real problems.”
Mr Salmond has been involved in a bitter row with the Supreme Court since it accepted an appeal from a man who was jailed for murder.
Mr Salmond said, “There is now a consensus that the UK Supreme Court plays a much broader 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 with serious implications for the certainty and integrity of our distinct legal system.
“We now have the interim analysis and conclusions…and I particularly welcome its recommendations for amendments to the Scotland Bill to limit the role of the UK Supreme Court by placing referrals from Scotland’s highest court of criminal appeal the High Court of Justiciary on the same footing as is the case for the justice system south of the border.
“It also makes positive suggestions for the UK Supreme Court to operate clearly and consistently as a court of interpretation of human rights law, and not as if it were the High Court of Justiciary.”
Labour justice spokeswoman Johann Lamont said the Supreme Court’s jurisdiction should remain. “Labour will support changes that both improve access to justice and bring greater clarity as to exactly which human rights cases should go to the Supreme Court.”
The Scottish Parliament will debate the issue on Thursday.