Political shift, legal status quo?

It was interesting to listen to Kenny MacAskill on BBC Radio Scotland following yesterday's interim report from the expert group set up to review the UK Supreme Court's relationship with the Scottish criminal justice system in the wake of the Cadder and Fraser cases.

The group, set up by Alex Salmond, is recommending that the 'asymmetry' between the Scottish and English systems be ended, thus access to the UKSC on human rights grounds would require leave from Scotland's criminal courts, as is currently the case in England. But politically it is axiomatic that the group is not proposing that UKSC be bypassed completely in favour of direct access to the European Court of Human Rights in Strasbourg.

Nevertheless, the language and tone adopted by both the first minister and justice secretary following the Fraser ruling seems to have been replaced by a more conciliatory approach, with Mr MacAskill eschewing talk of UKSC intervening "aggressively", "ambulance chasing lawyers" and the ridiculing of its judges' knowledge of Scots law in favour of an almost welcoming approach to the expert group's recommendations.

But the justice secretary conceded that even if the Cadder case had gone to the ECHR then the decision of that court on the human rights convention would have been substantively similar to that of UKSC.

Hence Mr Salmond's formation of the expert group managed to douse the political flames engulfing him and Mr MacAskill following their rather intemperate remarks, and its recommendations have enabled them to deflect attention from those earlier events and now strike a more diplomatic tone, but as was the case at the outset it's not entirely clear what substantive advantage would be conferred by the SNP's preferred solution of displacing UKSC's jurisdiction entirely with that of ECHR.

But yesterday Mr MacAskill reiterated the point that the considerably longer timeframe associated with an ECHR referral would allow the requisite changes to be made to Scotland's criminal justice system at a more considered pace as compared to the emergency legislation necessitated by the UKSC's Cadder ruling. As indeed - as he later made clear on Newsnicht - would be the case under a reformed relationship with UKSC, thus neither court could "open cell doors", using the phraseology employed earlier by Mr Salmond.

But how would this work in practice? Does this mean that Holyrood would make changes to Scots criminal law while waiting for an ECHR judgement, even when any changes required could obviously not be known until the judgement is delivered? Or if an ECHR judgement several years down the line found that a convicted criminal's human rights had been breached, could they remain in jail until whatever remedy Holyrood deemed necessary was enacted, with perhaps MSPs' lenghty summer holidays taking precedence over the rights of someone denied a fair trial?

Thus with the various different opinions from our learned friends on the practical effects of all this bringing to mind that old joke about umpteen economists proffering umpteen different perspectives on the same scenario, even if the procedural inconsistency between Scotland and England was ironed out it remains to be seen precisely what advantage would be conferred by ECHR over UKSC, other than placating the SNP's innate dislike of the UK as compared to their more favourable disposition towards all things European.

However, as well as Mr MacAskill's self-evidently more moderate approach, the Scotsman also reports thus: "A spokesman for the First Minister declined to say whether the Scottish Government "still hoped to see appeals heard in Strasbourg rather than London, saying the government would "take things a step at a time"."

Which arguably reflects the SNP's more accommodating stance towards the UK generally as regards the forthcoming referendum and what voters will consider palatable in respect of Scotland's future in the Union.