For many years the Herald, or Glasgow Herald as we traditionalists would prefer it still to be, produced excellent coverage of legal issues. Bruce McKain’s by-line on an article was usually a guarantee that there would be good understanding of the issues, and exposition making it clear to the layperson what the issues were.
Even in his court reports, which are normally simply edited highlights of the day’s evidence, his knowledge and experience of the court process meant that the Herald avoided errors other news outlets fell into.
However, in around 2003, Bruce McKain left the Herald and journeyed to the East. He took on the role of Director of Public Affairs at the Faculty of Advocates. The Faculty’s gain was very much the press’ loss. It is probably too much, especially in these days where newspapers have ever-increasing pressure on their margins, and redundancies in the industry are commonplace, to expect that Scotland’s leading quality paper will have a legal correspondent able to replicate what Bruce McKain did, but at least one would hope that there would be a basic understanding of legal matters when journalists report on them.
These thoughts were prompted by an “exclusive” piece in the Herald on 15th August 2011. http://www.heraldscotland.com/news/home-news/tobacco-display-appeal-could-spark-fresh-supreme-court-row-1.1117551
Kate Devlin, the Herald’s UK political Correspondent, wrote a piece headed “Tobacco display appeal could spark fresh Supreme Court row”.
She states that “The Scottish Government could face another showdown with the Supreme Court, this time over controversial plans to ban the display of cigarettes in shops.”
The piece refers to the legal challenge by Imperial Tobacco to the Tobacco & Primary Medical Services (Scotland) Act 2010 passed by the Scottish Parliament. Imperial Tobacco are challenging this through the courts, claiming that Holyrood did not have the power to pass such a law.
The case being pursued by them has not yet been determined by the Inner House of the Court of Session, on appeal from the original decision by Lord Bracadale, to uphold the new law. http://www.scotcourts.gov.uk/opinions/2010CSOH134.html
The article states that Imperial Tobacco has indicated that it could take the case to the UK Supreme Court, if the Inner House finds against it, and this, according to the writer “..would put the court and the Government on another collision course. Scottish ministers have already denounced the court’s judges for a series of decisions they claim have run roughshod over Scots law. The dispute escalated when the court overturned the murder conviction of Nat Fraser on human-rights grounds earlier this year.”
This is wrong on so many levels, and clearly will be of no help to the layperson in seeing the rights and wrongs of the issue.
First of all, the UK Supreme Court is a court, to which all parties, subject to the relevant rues, have access. If Imperial Tobacco lose in Edinburgh, they have the right to seek to appeal further to the UKSC. Prior to the creation of the UKSC, they could have appealed to the House of Lords. It is Imperial Tobacco who are challenging the Scottish Ministers, not the UKSC.
Secondly, this is a civil rather than a criminal matter. The majority of the criticism directed at Lord Hope and the other UKSC related to the Nat Fraser case where the UKSC “interfered”, according to Mr Salmond and others, with the long standing rule that the High Court of Justiciary was the ultimate appeal court in Scottish criminal law.
But, in civil matters, there is no such concern. In future the Scottish Ministers might seek to restrict or eliminate such a right of appeal, but for now no-one disputes that it is perfectly competent to take an appeal to London from Edinburgh in a civil case.
Thirdly, there is no “collision course”. The UKSC is a court. One could equally say that, if the Inner House finds in favour of Imperial Tobacco, it has placed itself on a “collision course” with Mr Salmond’s Executive.In the event that the Inner House was to find in favour of Imperial Tobacco, I am fairly certain that the case would be appealed by the Scottish Executive to the UKSC!
The only way in wich a “collision course” appears is if, in some way, it is seen to be wrong for a court to find against the Scottish Ministers. I cannot imagine that Mr Salmond and his Ministers believe that it is wrong for a court to find against them! If that is their view, then it would be helpful if that were to be made clear.
As I said, I cannot imagine such a piece appearing if Mr McKain was still at the Herald. I am sure that Kate Devlin is an excellent political correspondent, but her grasp, at least in terms of this article, of legal issues is sadly lacking.
Finally one wonders why the piece appeared now. The Inner House appeal has yet to take place. There is a long way till any appeal to the UKSC is marked. An appeal hearing in London is even further away.
To whose benefit is an exclusive article indicating that the Scottish Executive is continuing its fight against the “foreign” UKSC and its “interference” in the law of Scotland? Sadly, as I have no expertise in politics, I cannot answer that question!
Random Thoughts Re Scots Law by Paul McConville 