Issue 52 February 2011 - Introduction from the Editor: Cadder

 

The Cadder judgment and subsequent emergency legislation has not shown Scotland at its best. It presents fundamental and uncomfortable questions which need urgently addressed by us all.

There are few informed legal commentators who dispute the correctness of the judgment of the UK Supreme Court or who consider that the European Court of Human Rights would have come to any different conclusion. This inevitably then raises a fundamental question, which was indeed referred to by Lord Hope in the course of the judgment - just why had our Scottish legal system proven unable to address the issue at point, the right of a suspect in police detention to access to a lawyer?

This issue and the Cadder judgment should not have come as a surprise to those in positions of responsibility. For almost two decades it has been raised directly with the then Scottish Office and then the Scottish Government, not least by the European Committee for the Prevention of Torture during its periodic visits to Scotland and to which I personally gave evidence on the matter.

If those in government did not themselves see fit to act on the issue, why didthe Crown Office not do so, and, most worryingly, why did the High Court in McLean in 2009 get it so wrong? If that fundamental question about our legal system needs urgently addressed, does the same question need to be posed to our legislative process? What was the need for the Government to introduce emergency legislation (including the extension of permitted detention of a suspect from 6 to 24 hours) given the non-retrospective nature of the Cadder judgment and the fact the Lord Advocate guidelines providing for access to a lawyer had been in place for several months?

There has yet to be even a plausible, let alone convincing, answer to this question. There was time to get it right and the emergency legislation clearly has not. Questions also need to be considered about our legislative process and how our parliament responded to the introduction of the Government emergency bill.

How equipped is our parliament to deal with such a situation? Is proper scrutiny possible and, if not, what needs to be done to enable such?

There is no specific Committee on Human Rights as there is at Westminster. The Scottish Human Rights Commission was not consulted by the Government and was only able to respond to the Bill in the very limited time available - several hours - and emailed all MSPs with its concerns immediately prior to the debate and vote.

In the subsequent debate, which inevitably reflected the lack of informed scrutiny, Parliament did not insist on a “sunset clause” and accepted in its place anassurance by the Justice Secretary that a member of the judiciary would be invited to consider the legislation as part of a wider consideration of other implicationsof the Cadder judgment.

Perhaps the key question then is that of how we improve the governance of our country and ensure that it addresses critical human rights issues in a more accountable, forward and outward-looking manner. The Scottish Human Rights Journal encourages this discussion.