The Beginning of the End for Scots Law?; as Europe Exerts More Control over Our Courts and Holyrood Complies Meekly, Our Legal System Is under Real Threat

By Warner, Gerald | Daily Mail (London), March 15, 2001 | Go to article overview

The Beginning of the End for Scots Law?; as Europe Exerts More Control over Our Courts and Holyrood Complies Meekly, Our Legal System Is under Real Threat


Warner, Gerald, Daily Mail (London)


Byline: GERALD WARNER

JUSTICE is the area of government where openness, accountability and a scrupulous respect for democratic forms is most indispensable.

That is why we should take a long, cool look at the implications of the Convention Rights (Compliance) (Scotland) Bill currently going through the Scottish parliament.

This cumbersomely titled piece of legislation is designed to ensure the entire body of Scots Law is made compatible with the European Convention on Human Rights. Without indulging in 'here's tae us' triumphalism, there is a valid viewpoint which suggests that it would better have served the interests of justice if, instead, the Convention had been made compatible with Scots Law.

We have an ancient and respected legal system in Scotland.

Unlike English common law, it is already European in its cultural roots, since it derives from Roman Law.

Respect for human rights - basic rights, as distinct from politically correct grandstanding - is embedded in our legal system. Scots Law has always had exceptionally humane instincts. Centuries ago, it acknowledged that a starving man committed no crime if he stole enough food to keep himself alive.

The unimaginably cruel form of execution suffered by Sir William Wallace at the hands of Edward I would have been illegal under Scots Law, even in those days. Our courts abolished serfdom as early as 1364.

A form of legal aid existed from 1424.

So we are entitled to wonder, very politely, if it is necessary for a bunch of bureaucrats based in Belgium - a country invented as recently as 1830 - to rewrite our laws in the interests of humanitarianism.

When Scottish Justice Minister Jim Wallace rushed to incorporate the European Convention on Human Rights into the Scottish legal system, he betrayed the 'Scottish cringe' mentality of the Executive: laws handed down from mighty Europe must be superior to our homegrown Scottish legislation.

Granted that we are required to incorporate the European Convention on Human Rights Tentacles J

into Scots Law, the way in which we do it is important.

First of all, we must get real with Europe. This is not some quasi-mystical act of emancipation; it is essentially a political manoeuvre - a further extension of the tentacles of European integration into the vital areas of our public life.

This innovation is being imposed upon us quite cynically; we must be equally scep-tical in implementing it. Rushing to leap through Euro-hoops before we have to, as Jim Wallace did, makes us a soft touch for Eurocrats.

The debacle over temporary sheriffs was only the first in what may well be an unending sequence of crises provoked by one overriding phenomenon: the expatriation of our legislative - and even many executive - powers to Brussels.

So, yesterday, the Justice Committee of the Scottish parliament expressed 'grave concerns' about the Convention Rights (Compliance) Bill. It contains proposals to give Scottish Executive Ministers powers to change any existing piece of legislation, without going through parliament, if they believe that it conflicts with the European Convention on Human Rights.

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The Beginning of the End for Scots Law?; as Europe Exerts More Control over Our Courts and Holyrood Complies Meekly, Our Legal System Is under Real Threat
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