The Commission welcomes the interim report of the Review Group examining the relationship between the High Court of Justiciary and the UK Supreme Court in criminal cases chaired by Lord McCluskey. The report makes a further contribution to the debate on the procedure for considering human rights in Scots criminal cases.

Read the report at the Scottish Government website.

On 22 June 2011 the Commission wrote to all Members of the Scottish Parliament ahead of their debate on Supreme Court issues. The discussion about Scotland's relationships with the UK Supreme Court and the European Court of Human Rights (ECtHR) should be about principles and their practical application. The promotion and protection of the human rights of everyone in Scotland must be central to the discussion.

Read the letter in Word format.

The Scotland Act embedded human rights into the fabric of governance so as to ensure that everyone in Scotland is able to effectively enjoy the rights provided by the European Convention on Human Rights. In discussing how best to secure these rights we should acknowledge Scotland's continuing constitutional journey and take into account opportunities for change and further progress to realise the human rights of everyone in Scotland.

The forthcoming Parliamentary debate, informed in part by the Scottish Government’s Expert Group, provides a welcome opportunity to take a step forward. The Scottish Human Rights Commission wishes to assist this debate by identifying key questions and helping to open up discussion on options.

Such options could include further reviewing Scotland’s relationship with the Supreme Court with reference being paid to the Walker Report and the consultation of the Advocate General.

There is also the option for the Scottish Government to establish a Memorandum of Understanding with the UK Government as regards Scotland’s relationship with the European Court of Human Rights. This could formalise the role of the Scottish Government, through the UK’s membership of the Council of Europe, in making direct representations before the European Court of Human Rights in cases which have distinctive implications for the Scottish legal system.

It is extremely important to note however that the ECtHR is deliberately not a “court of final appeal”, e.g. cannot overturn a miscarriage of justice. In addition the expense and the backlog of over 150,000 cases mean that the ECtHR is not and should not be seen as a substitute for the individual’s right of access to a remedy from domestic courts in Scotland and the UK.

Professor Alan Miller, Chair of the Scottish Human Rights Commission, said: “There is a clear need to move forward the debate on Scotland’s relationship with the UK Supreme Court and the European Court of Human Rights. Ways forward can be identified and the Commission encourages such options to be considered from the point of view of ensuring equal enjoyment of human rights by everyone throughout Scotland and the UK.

"Those living in Glasgow should enjoy the same protection as those living in Gateshead, and vice versa. This is why there is a need, under the present constitutional arrangements, for a Supreme Court and why cases such as Cadder have been properly decided by such court.

"For the Scottish and UK Governments and Parliaments to maintain the principle of equality across the UK, there are a number of options to consider. Such options could include further reviewing Scotland’s relationship with the European Court of Human Rights and with the Supreme Court with reference being paid to the Walker Report (2010) and the consultation of the Advocate General (2010).”