Alex Salmond enjoys talking about how forward-looking and progressive Scotland is as a nation. Certainly we were exceptionally forward-looking in the 18th century when the Scottish enlightenment secured world-class achievements in science, medicine, engineering, architecture, law, philosophy and much more. But listening to our First Minister and Justice Secretary respond to the UK Supreme Court’s decision in Cadder v. HMA [2010] UKSC 43 you could be forgiven for thinking we were back in the dark ages.

Allow me to say what many senior Scottish lawyers think but are reluctant to broadcast: when it comes to protecting civil liberties and human rights we don’t generally rely on judges in Scotland; nor do we rely on our politicians, generally speaking, either side of the border. We rely on judges in London. The English Court of Appeal is considerably more progressive than the Court of Session, and quite frankly, the UK Supreme Court has done us a considerable service with its judgement in Cadder.

Before we discuss some of the ‘pith and substance’ of Cadder, it’s important to examine the formal stance of the Scottish Government. Yesterday, Kenny MacAskill insisted that Cadder was ‘a decision we did not seek but it is one to which we must respond’. Is this the perspective of an outward looking, enlightened, European?

Mr MacAskill’s statement said: "The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions ... Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights".

And today, Messrs Salmond and MacAskill have complained that only two of the UK Supreme Court judges ‘were Scottish’?! All of this provides proof – if we ever needed it – of the danger of viewing the world through a nationalist prism. The real story is that Scotland’s legal system – like most others – is not perfect and if you sign up to an international treaty like the European Convention on Human Rights, you need to raise your standards on a pan-European basis. Medicine is unpalatable, but it's good for you.

‘For over a year’ revealed the Cabinet Secretary for Justice, ‘the Scottish Government, Crown Office, SLAB, ACPOS, and the Scottish Courts Service have been preparing contingency plans to deal with all possible eventualities arising from this case’. So why on earth has the Scottish Government introduced these plans as an Emergency Bill – to be passed within 4 hours today (all three stages) – with no consultation with civic Scotland?

It would have been easy to have undertaken a public consultation on ‘here are our thoughts in the event of A, B or C’. Consulting with the people of Scotland is part of the democratic process of the Scottish Parliament. But today, we have an affront to the democratic process in Scotland, completely unnecessary given Mr MacAskill’s admission on the gestation period for his ‘Emergency Bill’, and completely reckless in my view from a good governance and law-making perspective.

Within 4 hours, our elected representatives will decide whether to increase the time period upon which police officers can lawfully detain suspects by 400% - from 6 hours to 24 hours – changing 30 years of practice with no prior consultation or public debate. There is no need for such haste, particulary when Crown office interim measures are already in place in Scotland.

One of the most startling things I took from Cadder was Lord Rodger’s observation that the rights of Scots on being detained by the police over the last 30 years had been weaker than the position under section 17 of the Criminal Procedure (Scotland) Act 1887. Just think about that. You had more rights as a suspect during the reign of Queen Victoria than now.

The Scottish Government’s talk of our legal system being ‘undermined’ by Cadder is nonsense. The truth is simple. We signed up to the European Convention on Human Rights in 1950. It’s an international treaty which we must respect and act upon. The European Court of Human Rights gave us a heads-up - with its 2008 decision in Salduz v. Turkey - that our detention procedures and lack of protection against self-incrimination were flawed. But our nationalist prism isn’t progressive. It always ignores criticism in favour of talking-up Scotland’s ‘proud, distinctive, justice system, developed over centuries’. Brigadoon, writ-large is dangerous.
Ladies and Gentlemen: welcome to Cadderland. A country with an inward looking Government, floating in a goldfish bowl of denial, with an outward looking culture of blame; except if you happen to be one of the Scottish Ministers or civil servants who failed to have regard to the jurisprudence of the European Court of Human Rights, and failed to lead our country. That's the real story.

Mike