[What follows is taken from an article entitled Ideology trumps sovereignty? by Stuart Winton published yesterday on the Better Nation website.]
But the stink over the Supreme Court itself reveals a pro-independence split between the more obvious rights-oriented psyche which supports the court’s intervention on the human rights convention’s right to a fair trial, as opposed to the undercurrent of a more illiberal stance from Mr Salmond and Mr MacAskill.
This is perhaps neatly encapsulated in a Scotsman article by Nationalist historian Michael Fry, who arguably displays little appreciation of the impact of ECHR jurisprudence on Scots law irrespective of the Supreme Court aspect – and instead highlights the dangers of British/English law to Scottish legal independence – but who in any case seems to demonstrates a distinctly anti-rights ethos:
“Till a year or two ago, there were no appeals in criminal proceedings beyond the High Court in Edinburgh. Today there is the possibility of or even the invitation to one for cases somehow involving human rights, and such an appeal will go to the Supreme Court in London. So a back door has been left ajar that could be hard to push to: there may be many cases in which clever and unscrupulous Scots defence lawyers will look for, indeed delight in finding, some aspect of human rights. The vaunted independence of the Scottish judiciary could in this area face the fatal risk of absorption into a British system of justice. And here, as in other areas, British may mean in reality English.”
By the same token, it may also be the case that the first minister and justice secretary are more concerned about the reputation of Scotland’s justice system than justice per se, thus their reaction to the Fraser and Cadder cases are perhaps less about the Supreme Court and the procedural and sovereignty aspects than how its decisions are perceived to reflect badly on the efficacy of an independent Scottish nation. Hence this all may represent a continuation of the misgivings regarding the Lockerbie bomber’s conviction, with al-Megrahi’s release on compassionate grounds reflecting more positively on the SNP’s desired perception of Scotland than the can of worms that an inquiry into the whole affair could represent, as dissenting Nationalist voices demonstrate.