Sunday, 10 July 2011

The conundrum of Scots Law

[This is the headline over an article by Hazel Lewry
published today on the Newsnet Scotland website. For some mysterious reason it is dated 3 June 2011 (now changed to 9 July). It reads in part:]

In recent years there have been at least three readily identifiable cases of potential miscarriages of justice or denial of basic human rights taking place under Scots Law: the Megrahi, Cadder and Fraser cases, each with their own unique aspects, each with their own unique implications for Scots justice. In every case there have been strong common threads. All put Scots Law, and those who practise within it, under an external microscope. Each case had its own issues that rightfully required this intense scrutiny.

Each case highlighted the dissimilarities between England and Scotland.

History has demonstrated that in the view of the UK, differences are not encouraged. Differences that can give Westminster’s dictated foreign policy a very bloody nose, as in the Megrahi case, shall and must be dealt with at the earliest opportunity.

With respect to Megrahi it was absolutely no surprise that the Scotland Bill was quietly and quickly amended in an attempt to address this issue, at least partially.

[It is unfortunate that the author is not more specific about the amendment she is referring to. On a quick trawl through the Bill, the only provision that seems potentially relevant is clause 27, which reads in relevant part:

Implementation of international obligations
(1) The 1998 Act [ie the Scotland Act 1998] is amended as follows.
(2) After section 57 insert—
57A International obligations
Despite the transfer to the Scottish Ministers by virtue of section 53 of functions in relation to observing and implementing international obligations, a function in relation to those matters which is exercisable by the Scottish Ministers is also exercisable by a Minister of the Crown as regards Scotland if it was exercisable by that Minister as regards Scotland immediately before that transfer.”

I suppose that this could be interpreted to cover a situation in which the UK Government had concluded a prisoner transfer agreement with a foreign country, but the Scottish Government was unwilling to operate it in respect of a particular prisoner in a Scottish prison. A UK Government Scotland Office minister might then have the power to exercise the transfer function in relation to that prisoner.]

1 comment:

  1. Scots Law is equal to English Law, to all law, but very different from it. The differences are so fundamental that they enshrine our separate identities and national histories. English Law is property based, it stems from the monarch being "Of England", and having sole say in who gets what, and adjudicating land and titles appropriately. Scots Law is human, or citizen based, reflected by the fact there has never been a monarch "of Scotland", but rather of the people "of Scots" in whom the real power of the realm is recognised as being vested. Properly put Elizabeth the current monarch is Elizabeth the Second, Queen of England, and Elizabeth the First, Queen of Scots.

    Brilliant article by Hazel Lewry which shines a completely different light on the shenanigans about the release of "Lockerbie bomber" Abdelbaset al-Megrahi.